Citation Nr: 1327083 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 08-34 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder. 2. Entitlement to service connection for residuals of a head injury. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision on behalf of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record and has been reviewed. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). In September 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional medical records and to afford the Veteran a VA medical examination. The action specified in the September 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for residuals of a head injury and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An acquired psychiatric disability characterized as depressive disorder and generalized anxiety disorder is shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability characterized as depressive disorder and generalized anxiety disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the 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 United States Court of Appeals for the Federal Circuit (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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Psychoses are recognized as chronic conditions by 38 C.F.R. § 3.309(a). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (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). A veteran who served during a period of war, or after December 31, 1946, will be 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, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2012). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. The Veteran is seeking service connection for an acquired psychiatric disability, which he claims developed during his active military service because of the stressful circumstances he experienced. Specifically, he reported that his problems started after he was deployed to Korea where there was always fighting in his barracks and he was afraid for his safety. The Veteran's service treatment records show recurrent complaints of nerves or nervousness, for which he was prescribed Librium. However, a psychiatric evaluation in July 1968 determined that the Veteran had no mental disease or defect. The examining psychiatrist noted: This young man has had a difficult time adjusting to the Army. Since his induction, he has visited a variety of dispensaries, hospitals, and clinics because of somatic complaints; till the present no organic pathology has been discovered, which indicates that these complaints are probably expressions of emotional conflicts. He has exhibited a marked degree of tension and ineffectiveness in his job. At this time, his motivation to serve the Army is poor and there is a high degree of manipulation in his behavior. No treatment is available for him in the military setting. Separation is recommended under the provisions of AR635-212. Service personnel records show that the Veteran was able to successfully complete his basic training and AIT training. However, after he was deployed to South Korea, he received three Article 15 punishments between June and August 1968. He was also noted to have engaged in a number of altercations. These records include documentation from the Veteran's superiors in Korea regarding his apathy, ineptness, and inability to get along with his supervisors and fellow soldiers. They also include possible evidence that the Veteran was suffering from an acquired psychiatric disability. Captain K.E. wrote that "I have observed [the Veteran] on numerous occasions in which he appeared to have lost contact with reality." He further observed that "...[the Veteran's] behavior is not within the bounds of what I consider normal." Post-service, the record reflects a long history of complaints of anxiety and depression. The Veteran has been diagnosed with dysthymic reaction, major depression, major depression with psychotic features, generalized anxiety disorder, substance abuse disorder, and rule out PTSD. The Veteran has also been diagnosed with a personality disorder, not otherwise specified, with paranoid, borderline, and dependent features. In February 2006, the Veteran was afforded a VA psychiatric examination. The examiner diagnosed the Veteran with major depressive disorder, alcohol dependence, and a personality disorder not otherwise specified with borderline, dependent, and paranoid features. The examiner opined that preexisting conditions in the Veteran's life predisposed him to develop an acquired psychiatric disability even before his experience in the military and that the Veteran's complaints of anxiety in service were just part of his effort to be released from the military. In November 2012, the Veteran was again afforded a VA psychiatric examination. The examiner diagnosed the Veteran with depressive disorder not otherwise specified, generalized anxiety disorder, and personality change due to a general medical condition, combined type. Like the February 2006 examiner, the November 2012 VA examiner opined that the Veteran had a premorbid anxiety/mood disorder prior to enlisting in the U.S. Army. However, the examiner also observed that the Veteran's military experiences, including a concussion in 1968, had a significant effect on the Veteran's life, and he has suffered from mood, anxiety, interpersonal, and impulse control issues since his experiences while stationed in South Korea. The examiner concluded that it is at least as likely as not that the Veteran has an acquired psychiatric disability as a result of his active military service. As noted above, a veteran will be 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, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2012). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). Here, the Board notes that the most recent VA examiner found that it was "likely" that the Veteran had a premorbid anxiety/mood disorder prior to enlisting in the U.S. Army. However, although the examiner indicates that prior to service the Veteran had a symptoms related to the later development or onset of an anxiety/mood disorder, his use of the terms "likely" and "premorbid" does not equate to clear and unmistakable evidence that the Veteran actually developed such disease prior to service. Thus, the Board finds that the first prong to rebut the presumption of soundness is not met. Accordingly, since the Board cannot find that the evidence rises to the standard necessary to establish that an acquired psychiatric disorder preexisted the Veteran's service, the Board need not address the second prong necessary to rebut the presumption of soundness. The Board finds that the Veteran was sound on entrance as to an acquired psychiatric disorder. Thus, the Board must determine whether the Veteran's current acquired psychiatric disorder was incurred in service. In this regard, while an examination in service found no psychiatric disability, the Veteran's service treatment records and service personnel records reflect complaints of and treatment for anxiety, as well as evidence of unusual behavior. Furthermore, the Veteran successfully completed his initial training and his behavioral problems appear to coincide with his deployment to South Korea, which supports the Veteran's claim that it was the circumstances of his Korean deployment that triggered his acquired psychiatric disability. There is also conflict among the VA medical examiners regarding whether the Veteran's current psychiatric problems are related to his military service. However, upon review of the February 2006 and November 2012 VA examination reports, the Board is unable to accord greater probative to one examiner's conclusions over the other. The ultimate opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales, relying on, and citing to, the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In light of the equipoise of the two VA opinions of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the Veteran's claims of entitlement to service connection for an acquired psychiatric disability characterized as depressive disorder and generalized anxiety disorder. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 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 will not be further discussed. ORDER Entitlement to service connection for an acquired psychiatric disability, characterized as depressive disorder and generalized anxiety disorder, is granted. REMAND The Veteran is also seeking entitlement to service connection for headaches, which he claims are the result of a concussion he sustained in service after being struck in the head by a Korean soldier. Service treatment records show the Veteran's report of medical history upon enlistment in September 1967 noted occipital tension headaches. A clinical neurologic evaluation at that time was normal. A January 1968 report noted complaints of posterior occipital headaches for years. A February 1968 report notes that the Veteran stated he had severe headaches about twice per month with no vomiting, blurring of vision, or aura. The examiner's impression was tension headaches. Hospital records dated in March 1968 shortly before his transfer to Korea show he was admitted for treatment with symptoms including vague headaches. A physical examination was noted to be generally within normal limits and an impression of immature personality was provided. It was noted that after a two-week period of medical observation the Veteran was discharged to regular duty. A report dated July 27, 1968, noted he reported the sun hurt his eyes and that he had headaches over the previous three days. In August 1968, the Veteran was treated in the emergency department for a small abrasion over the forehead and a subsequent August 1968 report noted he complained of headaches. The Veteran's October 1968 report of medical history noted a past history of anxiety reaction with dizziness and trouble sleeping and a concussion a month ago. A physical examination at that time revealed normal neurologic and psychiatric evaluations. Post-service treatment and examination report include diagnoses of tension headaches and migraine headaches. Private treatment records show a July 1999 computerized tomography (CT) scan revealed a normal brain and a March 2004 magnetic resonance imaging (MRI) scan revealed normal brain signal intensity for age. In a December 2012 VA examination report, a VA physician stated "Headaches were diagnosed after the blow to the head in 1968. Based on this fact a possible post concussion induced headaches is likely." Unfortunately, the examiner appears to misstate the facts, as there is evidence that the Veteran not only suffered from headaches prior to his August 1968 concussion, but also that his headaches existed prior to service. Accordingly, the Board finds that a remand is required for an addendum opinion from the September 2012 VA examiner. The examiner is asked to clarify whether there is clear and unmistakable evidence that the Veteran's headaches existed prior to service. If the Veteran determines that the Veteran's headaches existed prior to service, the examiner is asked to determine whether there is clear and unmistakable evidence either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. If the examiner determines that the Veteran's headaches did not exist prior to service, he is asked to opine whether it is at least as likely as not that the Veteran's current headache disability had onset in service or was caused or permanently aggravated by the Veteran's active military service. The examiner is asked to discuss the relevant evidence in the Veteran's service treatment records and post-service medical records in explaining his conclusions and he should indicate that he has reviewed the Veteran's claims folder. As the Veteran is claiming that his headaches were caused by a head injury in service, the Board finds that the issue of entitlement to service connection for residuals of a head injury is inextricably intertwined with the Veteran's claim for entitlement to service connection for headaches. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Indeed, as the Veteran has not clearly articulated any disability other than headaches that he believes was caused by the head injury in service, it appears that the Veteran's claims for residual of a head injury and headaches are essentially the same claim. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims file to the VA examiner who performed the December 2012 examination of the Veteran's headaches for an addendum opinion. If the December 2012 VA examiner is no longer available, the claims file should be referred to another qualified VA medical doctor. The VA examiner is asked to opine whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran had headaches that existed prior to his active military service. If so, the examiner is asked to opine whether there is clear and unmistakable evidence that this disorder did NOT increase in severity beyond the natural progress of the disease during the Veteran's active military service. For any headache disorder that did not exist prior to service, the examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's headache disability had onset in service or was caused or permanently aggravated by the Veteran's active military service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs