Citation Nr: 1333376 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-02 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty service from September 1988 to December 1999, and from March 2000 to March 2002, with additional periods of inactive and active duty for training served in the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals from a March 2009 rating decision from the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for depression with complaints of anxiety, insomnia, and nightmares. The Veteran testified before the undersigned Veterans Law Judge in October 2011; a transcript of that proceeding has been associated with the claims file. This matter was previously remanded by the Board in February 2012 and May 2013. FINDING OF FACT Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder had its onset in service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, service connection for an acquired psychiatric disorder, including depression and anxiety, is warranted. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the Board's favorable decision in granting of service connection for a psychiatric disorder, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service connection - laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Board notes that Savage was recently overruled by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) in which the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Here, the Veteran has not been diagnosed with a chronic disease or psychosis listed under 38 C.F.R. § 3.309(a) , therefore 38 C.F.R. § 3.309(b) is not applicable. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that '[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (a legal concept determining whether testimony may be heard and considered) and credibility (a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis The Veteran contends that her depressive and anxiety symptoms had their onset during active duty service. Specifically, during her hearing before the undersigned, the Veteran testified that her depression started while on active duty in 1991; she reported that she experienced anxiety attacks, heart palpitations, and suicidal thoughts intermittently throughout service and up until her separation from service in 2002. She has endorsed continuous psychiatric symptomatology since that time. She thus believes that service connection for a psychiatric disorder is warranted on a direct incurrence basis. As an initial matter, there is evidence of a current psychiatric disability in this case. When the Veteran underwent medical examination in connection with her claim in February 2009, the examiner diagnosed depressive disorder, not otherwise specified (NOS). Additionally, VA outpatient mental health treatment records, dated from 2009 to 2012, reflect ongoing treatment for, and diagnoses of anxiety and major depressive disorder. Thus, as the evidentiary record clearly shows a current psychiatric disability, the Board will now consider in-service incurrence. Service treatment records dated in March 1993 reflect that the Veteran presented to sick bay with complaints of dyspnea and pounding heart beat; objectively, the Veteran was in obvious respiratory distress. The assessment was palpitations, unknown etiology. An April 1993 Cardiology consultation sheet shows an essentially normal cardiac workup. A November 1994 Annual Physical Report of Medical History reflects that the Veteran checked "yes" as to having palpitation or pounding heart; the examining physician noted "occasional rapid, pounding of heart," lasting three to five minutes, with shortness of breath and occurring three to four times per month. Prior cardiac workup showed benign palpitations. A November 1999 separation Report of Medical History again reflects that the Veteran checked "yes" as to having palpitation or pounding heart; the examining physician noted "pounding heart with excitement." A December 1999 Report of Medical History reflects that the Veteran checked "yes" as to having palpitation or pounding heart; the examining physician noted "when under stress and extreme excitement, hear rate speeds up." A March 2000 Report of Medical History reflects that the Veteran checked "yes" as to having heart palpitations or pounding heart; the examining physician noted palpitations under stress and excitement." In October 2001, the Veteran was admitted to the Bremerton Naval Hospital for an admitting diagnosis of major depression with suicidal ideation. The Veteran described at least a two-year history of being on a "non-stop emotional roller coaster," including a divorce and stress associated with her recruiter position. She reported developing a persistent depressed mood, anhedonia, negative thinking with hopelessness, helplessness, uselessness, and worthlessness, increased sleep, social withdrawal, decreased interest, 30 pound weight gain, and thoughts of suicide. The Axis I diagnosis was major depressive disorder; the Veteran was prescribed Prozac and was to be followed by the adult psychiatry section of the Mental Health Clinic. A November 2001 service treatment record shows that the Veteran complained of feeling "odd" and that she had been experiencing headaches and rapid heartbeat; it was noted that she was being treated by a Dr. Hutchinson in Everett, who stated that "this could be caused by anxiety and is treating her with Paxil 10mg daily." She currently reported tightness her chest. The diagnoses were anxiety, bruxism, and heart palpitations. A March 2002 separation Report of Medical History reflects that the Veteran checked "yes" as to having nervous trouble and heart palpitations; current medications included Paxil. The examining physician noted "pounding heart/palpitations related to stress of recruiting." Following separation from service, the Veteran continued to be treated for psychiatric symptoms, including anxiety and depression; she was also prescribed the anti-depressant medication, Paxil (or Paroxetine), for management of these symptoms. See, e.g., VA Treatment Notes, August and September 2004; see also April 2008 VA Problem List. In February 2009, the Veteran underwent a VA mental examination, which confirmed a depressive disorder, NOS, diagnosis. A February 2010 VA social work intake assessment showed that the Veteran was admitted for inpatient treatment after reporting suicidal thoughts. She reported that she was first treated for depression in-service, and that she had been taking Paxil from 2002 to 2005, which was subsequently replaced with Wellbutrin. During the intake interview, she constantly reported historical stressors, including a divorce in 2000, long Navy sea tour duties, and a stressful recruiting position. The pertinent diagnosis was depressive disorder NOS. A March 2010 VA Women's Mental Health treatment note revealed that the Veteran had been hospitalized in February 2010 for depression with worsening mood and suicidal thoughts. The Veteran reported an onset of depression in approximately 2000, while working as a recruiter in the Navy. She stated that she was prescribed Paxil to help with her depressive and anxiety symptoms. She reported that the depression gradually worsened following service, especially with the diagnosis of Addison's disease (which is not a service-connected disability). Current objective symptoms included anxiety; the Axis I diagnosis was major depressive disorder. VA treatment records, dated from 2009 to 2012, added to the Veteran's Virtual VA claims folder show continued treatment for anxiety and depression, to include management of symptoms with Celexa and Bupropion. A VA mental examination addendum report was obtained in June 2013; the examiner stated that she was unable to determine whether the Veteran's current psychiatric diagnosis was related to service without resorting to mere speculation. In this case, in numerous statements of record, service and post-service treatment records, and hearing testimony, the Veteran has repeatedly stated that her depression and anxiety symptoms began during service and that she has suffered from psychological symptoms continuously since service. There is no dispute that Veteran is competent to report symptoms of depression and anxiety disorder, because this requires only personal knowledge as it comes to her through her senses. Layno, supra. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran's statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Indeed, the service treatment records reflect that the Veteran was treated for, and diagnosed with depression and anxiety, and post-service treatment records reflect ongoing treatment for depression and anxiety. Thus, the Veteran's testimony appears to be genuine, credible, and consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Again, under 38 C.F.R. § 3.303(a), service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. In this case, the Veteran's service treatment records patently demonstrate ongoing and intermittent treatment for psychiatric symptoms beginning in, and all throughout service, to include initial diagnoses of anxiety and depressive disorder, and multiple episodes of idiopathic heart palpitations/dyspnea. Even the Veteran's March 2002 separation Report of Medical History reflected that she was currently taking Paxil (an anti-depressant) and had "nervous trouble" and heart palpitations. Treatment for such symptoms, including depressive disorder and anxiety, continued shortly after her separation from service in 2002, and up to the present day. The Board acknowledges that the June 2013 VA examiner was unable to provide an opinion regarding direct service connection without resorting to mere speculation (and this amounts to a non-opinion). However, the Board has reviewed the record in its entirety and finds that the lay and medical evidence delineated above affirmatively show inception of a psychological disorder during service. 38 C.F.R. § 3.303(a). Resolving any remaining reasonable doubt in favor of the Veteran, the Board finds that the Veteran's depressive and anxiety disorder is related to her active service. The claim, therefore, is granted. ORDER Service connection for a depressive and anxiety disorder is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs