Citation Nr: 1332416 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 03-23 788 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include a nervous disorder, but excluding posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision. In a January 2005 decision, the Board reopened a prior final decision on a claim of entitlement to service connection for a nervous condition, including PTSD. The Board then remanded the reopened claim to the RO for additional development. In a decision dated June 2007, the Board denied a claim of entitlement to service connection for a nervous disorder, to include PTSD, on the merits. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision, dated April 23, 2010, the Court upheld the Board's decision denying service connection for PTSD. The Court reversed the Board's determination regarding the issue of entitlement to service connection for a nervous disorder to the limited extent that the Board held that a nervous disorder preexisted service. This issue was remanded for readjudication consistent with a finding that the Veteran entered service in sound condition. In September 2011, the Board remanded the Veteran's claim. As will be discussed in greater detail below, the directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's acquired psychiatric disability, to include a nervous disorder, was the result of his military service. CONCLUSION OF LAW Criteria for service connection for an acquired psychiatric disability, other than PTSD, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. As indicated above, a Memorandum Decision dated April 23, 2010 upheld the Board's June 2007 decision, which denied service connection for PTSD. Thus, the Board has no jurisdiction to further review a claim for service connection for PTSD. However, the issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD remains on appeal. In this case, the Veteran has long maintained that he has a nervous disorder (acquired psychiatric disability), which is due to his military service. The Veteran's service treatment records are void of any psychiatric treatment during service, and he was found to be psychiatrically normal at his separation physical in 1968. However, the records do show that while in service, the Veteran was stationed in the Republic of Vietnam where his MOS was as a combat medic. Within two years of separation, the Veteran filed a claim with VA seeking service connection for a nervous condition, and indicating that he had been treated for these problems at the 9th division hospital in Vietnam and various field hospitals. In October 1975, the Veteran was hospitalized at a VA hospital in Chicago where he complained of severe anxiety, and stated that he had been on psychotropics for years with some improvement. In the hospitalization record, it was noted that the Veteran had reported experiencing mental problems since he had been in service in Vietnam. He also reported stressor first noticing hallucinations in 1968. The Veteran was diagnosed with schizophrenia. VA attempted to locate the additional records of treatment described by the Veteran but was unsuccessful. Nevertheless, the Board finds it highly probative that the Veteran in 1975 reported experiencing psychiatric symptoms "since his time in Vietnam." This statement was made for the purpose of treatment, not compensation, and it is therefore afforded significant weight. Moreover, the Veteran, as a lay person, is competent to report experiencing psychiatric symptoms as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Through the years, the Veteran has been given a number of different psychiatric diagnoses, ranging from schizophrenia to major depressive disorder. He was also at times felt to have an Axis II personality disorder. However, more recent VA treatment records and a VA examination report in January 2013 no longer appear to assess the Veteran with a personality disorder. Rather, major depressive disorder appears to be the primary diagnosis rendered. Several medical opinions have been obtained as to the etiology of the Veteran's acquired psychiatric disability, other than PTSD. In March 1997, the Veteran underwent a VA examination at which the examiners stated that they were dealing primarily with a personality disorder and diagnosed the Veteran with substance abuse, schizophrenia by record and with borderline personality disorder. At a VA examination in October 2006, the Veteran related all of his emotional and physical conditions to his Vietnam war experiences, but the examiner noted that he did not describe any specific stressor. The examiner diagnosed the Veteran with major depressive disorder, and with cluster B personality disorder, noting specifically that the Veteran did not meet the criteria for PTSD. With regard to the etiology of the major depressive disorder, the examiner stated that major depressive disorder was not due to, caused by, or otherwise the result of his Vietnam service, but the examiner failed to provide any rationale for such an opinion. Rather, the examiner found that the Veteran's principal and most disabling condition was his characterological disorder which was a pre-existent condition. In January 2013, a VA examiner diagnosed major depressive disorder, but only opined that the major depressive disorder was not secondary to the Veteran's Guillain-Barre syndrome which was subject to VA compensation through 38 U.S.C.A. § 1151. The examiner did not opine as to the etiology of the condition. The Veteran has also provided a number of private medical opinions from a Dr. M, PhD, including letters written in June 1998, June 2002, June 2003, and February 2005. The letters consistently diagnose the Veteran with PTSD and with major depressive disorder and relate the diagnoses to the Veteran's time in service, noting on multiple occasions that the Veteran's current behavior was considerably influenced by his Vietnam memories. Here, the Board is presented with multiple, conflicting medical opinions. However, the negative medical opinions of record do not provide any persuasive rationale for why the Veteran's acquired psychiatric disability, other than PTSD, is not related to his military service. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Here, the Board is persuaded that the Veteran has a current Axis I psychiatric disability. He received psychiatric treatment shortly after service, and his psychiatric problems have been related to his military service by a medical professional. While there are several negative medical opinions, the opinions are no more probative than the positive opinions. As such, greater weight will not be afforded to the negative opinions. Given this conclusion, the evidence for and against the Veteran's claim is in relative equipoise, and service connection is therefore granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for an acquired psychiatric disability, to include a nervous disorder but excluding PTSD, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs