Citation Nr: 1329056 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-31 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a psychiatric disorder, variously diagnosed as posttraumatic stress disorder (PTSD), depression, and anxiety disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2009 rating decision issued by the Regional Office (RO) in Salt Lake City, Utah. The Veteran testified at a hearing before the undersigned Veteran's Law Judge in December 2012. The Board acknowledges that this case came to the Board as three separate issues; entitlement to service connection for PTSD, depression, and anxiety disorder. However, a claim for service connection for one psychiatric disorder is deemed to encompass other diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). For simplification and clarity purposes the Board has redefined these issues into a single issue of service connection for a psychiatric disorder that is inclusive of PTSD, depression, and anxiety disorder. FINDING OF FACT The Veteran has a psychiatric disorder which was made worse as a result of his military service. CONCLUSION OF LAW A psychiatric disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claims is required at this time. Service connection The Veteran contends that he developed a psychiatric disorder(s) as a result of his military service. He claims that he was assaulted in service and that this caused his psychiatric problems. He also claimed that the stress of military training contributed to his psychiatric symptoms. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When determining service connection, a presumption of soundness applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Id. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). Service connection for PTSD is subject to unique regulatory provisions, and requires medical evidence diagnosing the disorder in accordance with 38 CFR § 4.125(a), medical evidence linking current symptoms to an in service stressor, and, in some circumstances, credible supporting evidence that the claimed in service stressor actually occurred. 38 C.F.R. § 3.304(f). A psychiatric disorder was not noted on the Veteran's entrance examination. No psychiatric problems were documented during service, although the Veteran's commander referred him for a psychiatric evaluation in May 1976 as a result of his poor attitude and substandard performance. The Veteran's service records do not indicate whether this evaluation actually occurred. The Veteran contends that he sought psychiatric treatment in service due to experiencing suicidal and homicidal urges, but there is no documentation of this. There were no psychological evaluations or psychiatric treatment shown until many years after service; the first evaluation appears to have taken place in the mid-1990s. However, the Veteran's VA psychiatrist was of the opinion that the Veteran's psychiatric difficulties either started in service or preexisted service. The Veteran's psychiatrist believed that the Veteran was exposed to some sort of trauma in service which led to his psychiatric difficulties including anxiety and depression. In a subsequent letter, he opined that a trauma in service caused the Veteran to experience PTSD and depression. However, the Board notes that the Veteran's story about an in service assault was not corroborated by the objective facts. The Veteran was evaluated by VA in April 2012. The examiner noted that the Veteran was an unreliable historian and that he denied experiencing traumatic events prior to service although significant pre-service trauma had previously been documented. The examiner opined that the Veteran had PTSD as a result of his experiences prior to service, but was unable to ascertain whether his symptoms got worse as a result of his military service because the Veteran's reports were not reliable. The examiner also opined that the Veteran had a depressive disorder prior to service, but was unable to provide an opinion as to aggravation due to the Veteran's unreliable reporting. He also had cognitive deficiencies related to a post-service motor vehicle accident and a personality disorder. Private treatment records indicate that the Veteran's psychiatric problems got worse after this car accident in April 1995. Due to the VA examiner's suggestion of a psychiatric disorder or disorders that preexisted service but may have got worse during service, the Board obtained an expert opinion from a psychiatrist. In a May 2013 report, the psychiatrist concluded that the Veteran's psychiatric problems preexisted service and resulted from childhood trauma. However, the psychiatrist opined that the Veteran's military experiences and the stressful military environment in general exacerbated the Veteran's symptoms and led to further decline in functioning. The psychiatrist noted that military training and experiences afflicting an already damaged psyche from childhood more likely than not was the cause of a major depressive episode which the Veteran experienced in service. The Veteran continued to have psychiatric problems and depressive episodes after service. Thus, the weight of the evidence tends to show that the Veteran's psychiatric difficulties, including PTSD and depression, pre-existed service but were made worse by service. As such, it cannot be said that they clearly and unmistakably preexisted service and were not aggravated by service. Rather, the highly probative opinion of the expert psychiatrist who provided the May 2013 report was that the general stresses of the military environment increased the Veteran's symptoms and resulted in a permanent decline in functioning. The evidence shows that the Veteran was predisposed to experience additional psychological difficulties in the military due to his pre-service experiences and that his PTSD and depression were in fact made worse by service. Although the Veteran has no corroborated in-service stressor, in this case the diagnosis of PTSD was not shown to be due to an alleged in service occurrence, but rather preexisted service and was made worse during service. Here the grant of service connection is based upon the evidence that the Veteran's PTSD and other mental health problems preexisted service and were made worse by service and not due to a finding that the Veteran was assaulted or subject to any other unusual experience in the military. Additionally, the stressor verification requirement applies only to claims of PTSD and not other diagnoses such as anxiety disorder or depression, which have also been diagnosed in this case. In essence, the presumption of soundness is applicable in this case. In order to rebut the presumption of soundness, there is a two step process, each requiring clear and unmistakable evidence. Although there is clear and unmistakable evidence that a psychiatric disorder (regardless of classification) preexisted service, the Board has not been presented with clear and unmistakable evidence that the disability was not aggravated during service. Although we are concerned with opinions that are based upon a minimalist record, there is evidence that there had been a referral for psychiatric evaluation during service. In sum, based upon the record, the evidence supports the claim. For these reasons, service connection for a psychiatric disorder, variously diagnosed as PTSD, depression, and anxiety disorder is granted. ORDER Service connection for a psychiatric disorder, variously diagnosed as PTSD, depression, and anxiety disorder, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs