Citation Nr: 1332366 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-35 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disorder, to include adjustment disorder with depressed mood and depression, including as secondary to service-connected disability of chronic laryngitis. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in May 2013, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) regarding the claim. In June 2013, the Board received the requested opinion. FINDING OF FACT Adjustment disorder with depressed mood is related, at least in part, to active service. CONCLUSION OF LAW The criteria for service connection for adjustment disorder with depressed mood have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a psychiatric disability, to include as secondary to service-connected chronic laryngitis. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet App 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted."). This presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227 . In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The January 1953 service entrance examination report shows psychiatric examination was normal. A psychiatric disorder was not noted. Service clinical records reflect a sudden loss of voice in November 1953. The diagnosis was chronic laryngitis/hoarseness for which he had ongoing treatment, to include vocal cord stripping. A clinical summary associated with a transfer to Speech & Rehabilitation notes that the aphonia was on a hysterical basis, and aggravated by surgery. A June 1954 record reflects Amytal was administered to induce hypnosis in an effort to obtain the full history of the Veteran's laryngitis, and psychiatric factors were noted. Although a July 1954 clinical summary reflects the Veteran's reported history of the condition for approximately 16 years, VA inpatient records reflecting examination and observation in June 1956 note the Veteran's report of having been unable to speak above a whisper for the last 18 months, off and on. In the June 2013 VHA opinion, it was determined that there is not clear and unmistakable evidence that a psychiatric disorder existed prior to service entrance. It was noted that the quality of information gathered during a drug-induced interview may be questioned in the absence of collateral reports to confirm the information. A psychiatric disability was not noted at service entrance and the Board finds that there is not clear and unmistakable evidence that a psychiatric disorder existed prior to service entrance. The presumption of soundness at service entrance is not rebutted. Having determined that the presumption of sound condition at service entrance attaches, the Board turns to the question of whether a psychiatric disorder was manifested during service. The July 1954 clinical summary notes the Veteran expressed that he did not like Korea, and that the present episode of losing his voice had started when he was called to go on guard duty one night. The record reflects that the Veteran stated that 'I would rather be dead than like this.' Although the July 1954 clinical summary reflects good motivation without other evidence of psychiatric disease, an August 1954 neuropsychiatric clinic record notes that in all probability the loss of his voice was secondary to a psychological disturbance. It was noted that the emotional factors of losing his voice were very obvious and very intimately connected with the circumstances of his losing his voice. The diagnosis entered was passive dependency reaction, with symptomatic habit formation, dysphonia. Although the March 1955 separation examination report shows that psychiatric examination was normal, VA inpatient records in June 1956 reflect an assessment of aphonia, presumably on a psychotic basis. A March 1960 VA neuropsychiatric examination report notes that although he had no spontaneous complaints about nervousness, on questioning, he stated that at times he was 'shook up.' The assessment was conversion reaction, evidenced by aphonia. An April 1960 examination report reflects a diagnosis of laryngitis, not found. The cause of marked hoarseness was noted to be undetermined. The assessment was conversion reaction, evidenced by aphonia. Although the January 2013 addendum to the April 2012 VA examination report notes that the Veteran's anxiety-related symptoms have subsided over time, the April 2012 VA examination report notes service records reflect the Veteran would lose his voice when he felt extremely nervous and that his voice has never fully recovered since separation. To the extent that the January 2013 addendum notes that depressive symptoms developed as a result of his overall physical health decline, and specifically, joint pain, as well as the natural aging process, VA treatment records, dated in January 2010, note depression for more than 30 years, and the diagnosis was depressive disorder, not otherwise specified. The VHA opinion reflects the in-service finding that dysphonia was of psychological origin, and although the current diagnosis of adjustment disorder was noted to be not "significantly" related to dysphonia, the opinion tends to establish that psychiatric symptoms are related, at least in part, to the dysphonia during service. The evidence is in at least equipoise. Resolving doubt in the Veteran's favor, service connection for adjustment disorder with depressed mood is warranted. ORDER Service connection for adjustment disorder with depressed mood is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs