Citation Nr: 1331822 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-13 901A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, anxiety disorder not otherewise specified (NOS), dysthymia, and major depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from April 1955 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran filed his claim for service connection for posttraumatic stress disorder (PTSD). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The record contains diagnoses other than PTSD such as anxiety disorder NOS. Thus, the claim of service connection is as stated on the title page of this decision. The Veteran had requested a hearing, but the Veteran withdrew that request in writing in July 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT An acquired psychiatric disability, anxiety disorder with depression, had its onset in service. CONCLUSION OF LAW An acquired psychiatric disability, anxiety disorder with depression, was incurred in service. 38 U.S.C.A. § 1110, 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim for service connection for an acquired psychiatric disorder is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claim, for service connection for an acquired psychiatric disorder is not necessary. General Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A psychosis is listed as a disease under § 3.309 as a chronic disease. The showing of a chronic disease in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a psychosis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). As the Veteran is claiming service connection for a mental health disability, the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association 's, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). The Veteran filed his claim for service connection for PTSD. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The service treatment records show that in May 1974, the Veteran was seen for mild to moderate depression that was attributed to work stress but the Veteran felt an upcoming change in a job assignment would resolve the problem. In October 1975, the Veteran was treated for severe stress because his wife died. As psychiatric symptoms were noted, that is, observed during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. The Veteran has submitted statements that the first night he was in Vietnam, his base was subjected to a mortar attack and the next day he observed damage and casualties. Thereafter, he felt he could be under attack on any day at any time. He also recalls being in close proximity to hear small arms gunfire and on a couple occasions he travelled to Saigon by air with fuel samples for analysis and they were fired upon. The Veteran has asserted that he had a hard time resuming a normal life after he returned from Vietnam, and that he still suffered from sleep disturbance. As a result, he began to drink alcohol until he sought treatment. Service personnel records confirm that the Veteran served in Vietnam from April 1966 to May 1967. His military occupational specialty during that time was aircraft fuel specialist. The first indication of record that the Veteran was treated for a psychiatric disability was in March 2008 when he underwent what was labeled as a biopsychosocial evaluation for PTSD. The Veteran stated he did not sleep well and had not done so for years. He also got depressed quite often and tried to disregard the feelings but they kept coming back. He also reported he had difficulties with his temper in the past but learned to control his temper. He stated he sometimes saw things that have happened in the past but now came back to him. He reported he had dealt with his symptoms for many years by working. He indicated that working with people helped him. He reported that he had last worked for a regional transportation district as a bus driver, and had retired in 2000. Besides his depression and sleep disturbance, the Veteran also indicated he had slight irritability and low motivation and poor memory. He did not have any suicidal or homicidal ideation or plan, hallucinations, or mania. The Veteran is a recovered alcoholic. He has remarried and liked to golf, fish, and attend his church. As for stressors, the Veteran reported he worked the flight line in Vietnam fueling aircraft. He had no combat exposure or exposure to atrocities. He reported that they often brought in mortars and rockets. It is not clear from this statement if the Veteran meant he was attacked or that he also handled mortars and rockets. On examination, the Veteran was oriented and well groomed. He had a guarded and slightly aloof demeanor. His mood was depressed and his affect was slightly restricted. He had fluid, linear, and concise thought and speech. His gross cognitive function appeared intact but the Veteran noted significant disruption in memory and concentration, which the therapist noted is seen frequently in individuals with depression and anxiety disorder. There was no evidence of thought disorder, psychosis, or mania. The Veteran had fair insight and judgment. The therapist evaluating the Veteran concluded the Veteran did not meet the criteria for a diagnosis of PTSD but described depression symptoms. The severity did not establish a major depressive disorder, so the therapist diagnosed a chronic low level depression or dysthymia. The GAF score was 70. In December 2008, the Veteran was noted to stay active and played golf a lot. The therapist concluded the Veteran's social life suggested he was not too depressed. His mental health examination suggested his symptoms were unchanged. The Veteran was cooperative but serious and he had an irritated and depressed mood and effect. His thought process was organized. The diagnosis was sleep problems and/or dysthymia with a GAF score of 55. In September 2009, the Veteran reported he had tried to get help for his problems for many years and no one would listen to him but from the context of the note, it appears the Veteran was referring to medical conditions he attributed to Agent Orange exposure and not his mental health symptoms. As to his mental health symptoms, he stated it took about two hours before he fell asleep but then he wakes up two to four hours later with the length varying how long before he can return to sleep. The Veteran denied problems with concentration, energy, motivation/loss of interest in activities, or that he felt bad about himself. He did state he gets depressed irritable mood that he tries to shake. He also had memory problems. He does stay busy and plays golf. Medication helped with his sleep. The Veteran had an irritable mood and affect. There were no suicidal or homicidal thoughts or ideation. He had an organized thought process and good insight and judgment. The GAF was 55. In April 2010, the Veteran reported anger issues with his wife and the public. He has aggressive thoughts that he has been able to control. His appetite and energy levels have been normal and he still exercised three times a week and played golf with friends. Concentration was not too good and faded out frequently with thoughts about the war. He has nightmares 3-4 times a month. The Veteran isolates when thinking of hurting others. He never thinks of hurting himself. He leaves home when he gets angry at his wife. He had good eye contact but a guarded and stressed demeanor. His speech was low in tone and volume and he had a depressed mood and affect. His thought process was linear with no loosening flight, frequent blocking on details. He denied any psychotic symptoms but reported slowed memory and recall. His judgment and insight were fair. The assessment was PTSD and major depressive disorder with a GAF of 50. In November 2010, the Veteran complained of insomnia but medication was effective. His appetite was good although his energy levels were occasionally low. His wife had recently received a total knee replacement and he occasionally gets angry because she does not obey the doctor's orders. When that happens, he leaves the house. He worked on trying to avoid things that bother him. The Veteran was cooperative and had fluent and articulate speech. The mood was depressed and appropriate and the affect was congruent and restricted. He did not have any suicidal or homicidal ideation or plan. His thought process was linear and no psychotic episodes were observed. He had good insight and judgment. No gross deficits were noted for cognitive deficits or memory. The diagnosis was recurrent major depression. In May 2011, the Veteran reported that the prescription medication helped him sleep, although sometimes he awakens with a startle. The Veteran suspected that medication helped decrease irritability at times, but he still tends to get angry and irritable when around other people. He tries to stay active, participates regularly at VFW and Moose Club, attends church, and enjoys golfing. His main goal was to continue to reduce irritability. The Veteran had a bit tense of a demeanor but was cooperative and polite. He had a mildly irritable mood and constricted effect. There was no suicidal or homicidal ideation or plan. His thought process was logical and coherent with no evidence of psychotic symptoms. His judgment and insight was fair. The diagnosis was dysthymia. The Veteran was provided a VA examination in March 2012. The Veteran reported that his first wife died and his second marriage has lasted 34 years. He described the marriage as good but it can be rocky because of his actions. The Veteran has children from both marriages and is a grandfather who enjoys taking his grandchildren to church. He keeps busy with various activities and has 15 close friends. He golfs twice a month and tries to fish as often as he can. The Veteran reported he did not participate in direct combat and served in Vietnam fueling aircraft and tanks. He could hear small firearms in close proximity and once a fuel tank was hit by a mortar and it exploded. He experienced a mortar attack his second night in Vietnam. Currently, he has dreams about being shot while in Vietnam. The VA examiner determined that the Veteran did experience fear of hostile military or terrorist activity sufficient to act as a stressor for a diagnosis of PTSD. It was noted the Veteran also had recurrent and distressing recollections and dreams about the events and had sleep disturbance. The examiner noted the symptoms included a depressed mood and anxiety. The Veteran did not, however, have avoidance behavior. The Veteran had some symptoms characteristic of PTSD but did not meet the criteria for PTSD. The VA examiner diagnosed anxiety disorder NOS for the sleep disturbance and the other symptoms and concluded at least as likely as not the Veteran's disability resulted from the Veteran's service in Vietnam. As noted, the Veteran filed his claim for service connection on the basis that he has PTSD. The Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter. Although the Veteran is competent to describe symptoms of PTSD such as his sleep disturbance, periods of depression, and irritability, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Veteran is not asserting any condition that is capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). Furthermore, for the claim before the Board, a diagnosis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, which requires medical knowledge. Furthermore, the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV). No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Therefore, the Veteran's assertion or opinion that he has PTSD or another mental health disability and the relationship of a diagnosis or symptom to service is not competent evidence. To this extent his statements and testimony are not admissible as evidence of the diagnosis of PTSD. It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional. See also Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). The Veteran's discussion of his symptoms over the years certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional. To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms. Such lay evidence is relevant and competent. To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of the disability to service, the Board has disregarded the Veteran's opinions in its analysis. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV). Thus, the Board finds that the only competent and credible medical evidence before the Board, that relates directly to the possibility of a connection to between the current disorder and service, is the March 2012 opinion of the VA examiner. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examiner in March 2012 concluded that the Veteran's disability did not meet the criteria from the DSM-IV for a diagnosis of PTSD. He did conclude that the Veteran's symptoms of sleep disturbance and recurrent periods of depression were sufficient for a diagnosis of anxiety disorder NOS and as likely as not the disability was related to the Veteran's service in Vietnam. The Board notes the medical opinion of the VA examiner is well reasoned, detailed, provides a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. The examiner found the Veteran to be credible as to the circumstances of how he developed symptoms as a result of service. Finally he explained the Veteran does not have PTSD as his symptoms do not conform to the DSM IV, but instead, has another mental health disorder according to the DSM-IV that is related to service. In light of the foregoing, the Board finds that the opinion of the VA examiner is persuasive evidence against finding the Veteran has PTSD as he claimed. Nevertheless, a claim for service connection for PTSD also encompasses a claim for service connection for all psychiatric disabilities afflicting a Veteran. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinion that specifically addressed the question of a diagnosis of a psychiatric disability, anxiety disorder with depression, and the connection to service, the Board finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and likely etiology of the anxiety disorder with depression, which supports, the claim. Accordingly, the weight of the medical evidence is favor of an association or link between the current anxiety disorder with depression and service, including the Veteran's service in Vietnam. The Board finds that the Veteran has an anxiety disorder with depression, and that it began in or as a result of service. Therefore, the claim for an acquired psychiatric disorder, diagnosed as anxiety disorder with depression, must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as anxiety disorder with depression, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs