Citation Nr: 1327236 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-35 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2009, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In its July 2010 decision, the Board denied the Veteran's request to reopen his previously denied claim for service-connection for PTSD. However, the Board remanded the issue of entitlement to service connection for a psychiatric disorder, other than PTSD in order to conduct further development. That development having been completed, this case is once again before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an appellate brief dated August 2013 from the Veteran's representative. FINDING OF FACT The record evidence is at least in equipoise as to whether a major depressive disorder had its onset during the Veteran's period of service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a major depressive disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA With respect to the claim for entitlement to service connection for a psychiatric disorder, other than PTSD, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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, 1377 (Fed.Cir.2007). 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); see also Jandreau, id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that he developed a psychiatric disorder, manifested by depression, sleep disturbance, isolation, and alcohol abuse among other things, shortly upon returning from service in Vietnam. The Veteran has reported to VA treatment providers that he received treatment at Walter Reed Army Hospital after returning from Vietnam, while he was still in the service. At his December 2009 Board hearing, the Veteran stated that he was first treated at Fort Meade, before then being transferred to Walter Reed Army Hospital, upon his return. The Veteran has stated that he was diagnosed with "war-related stress." A review of the Veteran's service treatment records revealed no treatment records for complaints or diagnoses of any psychiatric disorders. Both the Veteran's service entrance examination and exit examination were negative for any indication of a psychiatric disorder. There were also no records relating to a hospitalization at Walter Reed Army Hospital or a diagnosis of war-related stress. A review of the Veteran's VA outpatient treatment records, private treatment records, and Social Security Administration (SSA) records reveal that he has been treated for psychiatric disorders, variously diagnosed to include major depressive disorder, mood disorder, substance abuse mood disorder, dysthymia, and schizophrenia, intermittently since 1979. Although some of these diagnoses, such as schizophrenia, have been characterized as acute, there has been no substantial etiological discussion with any remaining diagnoses. The only mention of etiology to military service has been provided in the Veteran's subjective histories. The Veteran was provided with a VA examination in October 2010. At that examination, the examiner noted the Veteran's subjective history of depression, sleep disturbance, isolation, and alcohol abuse beginning during the Veteran's military service, upon returning from Vietnam. The Veteran also reported intrusive thoughts and nightmares about Vietnam. The examiner noted that the Veteran had no family history or presentation of symptoms prior to his military service. Upon examination, the examiner noted that the Veteran's affect was blunted. The Veteran was found to be experiencing moderate dysphoria, frequent crying, significant anergia, anhedonia, social withdrawal, helplessness, hopelessness, decreased self esteem, loss of libido, and thoughts of death. The examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate to severe. His global assessment of functioning (GAF) score was 45. The examiner opined that the Veteran's mood disorder was related to his service in the military. The Veteran was provided with an addendum opinion to the October 2010 VA examination in December 2011. Upon reviewing the 2010 examination and the claims file, the examiner opined that the Veteran's psychiatric disorder was as least as likely as not incurred in or caused by the claimed in-service event, injury, or illness. In support, the examiner provided that the Veteran did not have a prior history of mental illness before service and did not have a family history of such. The Veteran's psychiatric problems began following military service and he has continued to have such problems to present. Based upon these facts shown in the Veteran's treatment records and his lay statements, the examiner found that it was as least as likely as not that his current psychiatric disorder began in service. The record of evidence supports a finding of a current disability, because the Veteran's private treatment records, VA medical records, and VA examinations reveal that the Veteran has a presently existing psychiatric disorder, variously diagnosed to include major depressive disorder, mood disorder, substance abuse mood disorder, dysthymia, and schizophrenia. See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303. The record of evidence also supports a finding of an in-service injury because the Veteran's competent and credible statements indicate that, upon returning from Vietnam, both while he was in the service and after, the Veteran began experiencing symptoms of depression, sleep disturbance, isolation, and alcohol abuse. Id. Thus, the remaining issue is whether there is evidence of a nexus between the Veteran's current psychiatric disability and military service. Id. The Board finds that the Veteran has provided competent and credible testimony that his psychiatric symptoms have had onset and continued since service discharge. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is competent to testify about the onset and continuation of his psychiatric symptoms, as such symptoms, depression, sleep disturbance, etc., are observable and within the realm of his personal knowledge. Further, the Veteran is credible, as his statements regarding the onset of his psychiatric symptoms as well its continuation has remained consistent and is corroborated by the treatment notes in his private and VA treatment records. In assessing the evidence of record, the Board observes that the Veteran's service treatment records are absent for any discussion of complaints or treatment for any psychiatric disorders. Further, the Veteran's private and VA outpatient treatment records, although reflecting a history of treatment for his psychiatric disorders, do not provide evidence of an etiological relationship to military service. Notably, however, there is also no evidence providing any kind of negative etiological opinion in regards to a relationship of the Veteran's psychiatric disorder to military service. There is also no evidence that contradicts the Veteran's statements regarding onset and continuation of psychiatric symptoms. As there is no evidence associated with the claims file to rebut the Veteran's assertions, he is provided the benefit of the doubt and his assertion of onset and continuity is presumed. It is also well to observe that the October 2010 and December 2011 VA examinations were based on a medical history offered by the Veteran, which is accurate and consistent with his post-service treatment history as well as the fact that he had no pre-service psychiatric disorders or precursors to develop any later ones. These critical pieces of information from the Veteran's medical history do lend credence to VA examiners' apparent association of the Veteran's presently existing psychiatric disorder. After a full review of the totality of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the record of evidence is at least in equipoise as to whether the Veteran's psychiatric disorder was incurred in military service. Accordingly, the Board determines that service connection for a major depressive disorder is granted. The appeal is granted. ORDER Entitlement to service connection for a major depressive disorder is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs