Citation Nr: 1333793	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  12-10 174	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant and his wife.


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran had active military service from July 1968 to November 1970 which service included service in the Republic of Vietnam from December 1968 to December 1969. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In July 2013, the Veteran and his wife testified at a video hearing before the undersigned.  A transcript of that hearing has been associated with the claims file.  

In September 2013, the Board obtained a Veterans Health Administration (VHA) opinion.  Given the favorable decision below, the Board finds that the Veteran will not be prejudiced by adjudicating the appeal without first providing him with a copy of the VHA opinion.

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).


FINDING OF FACT

The Veteran's depression and a bipolar disorder had their onset in service.


CONCLUSION OF LAW

Depression and a bipolar disorder were incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

At the Veteran's personal hearing, he testified that the Boards grant of service connection for any psychiatric disorder would satisfy his appeal.  

In this decision, the Board grants service connection for the Veteran's depression and bipolar disorder, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran claims that he has depression and a bipolar disorder due to his military service.  Specifically, he maintains that they are related to or had its onset in service from July 1968 to November 1970, to include service in Vietnam from December 1968 to December 1969 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 such as a psychosis.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including a psychosis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In order to establish service connection for the claimed disorder, there must be (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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

It is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

As to a current disability, available post-service treatment records, dated from 1977 to 2011, document the Veteran's complaints and treatment for a major depressive disorder starting in 1985.  Thereafter, treatment records starting in 2005 document his complaints and treatment for a bi-polar disorder with fluctuating depressive and manic symptomatology.  Similarly, the Veteran was afforded a VA examination in August 2012 in which he was diagnosed with a bi-polar disorder.  Therefore, the Board finds that the record contains medical evidence of a current disability.  See Hickson.

As to in-service incurrence or aggravation of a disease or injury, the record shows that the Veteran served in the Republic of Vietnam from December 1968 to December 1969.  Moreover, the Board finds that the Veteran is both competent and credible to report on what he can feel, such as depression while on active duty including while in the Republic of Vietnam, even when not documented in his service treatment records because this feeling comes to him by his own senses.  See Davidson.  Therefore, the Board finds that the record contains lay evidence of in-service incurrence or aggravation of a disease or injury.  See Hickson.

The Board will next consider whether the claimant has medical evidence establishing a link between his depression and/or bi-polar disorder and military service.  

In this regard, in writings to VA as well as at his personal hearing the claimant has competently and credibly reported that he had received psychiatric treatment at the Dallas VA Medical Center within the first six months after his 1970 separation from active duty.  The record does not contain, as off yet, any of the Veteran's 1970 to 1976 VA treatment records.  Nonetheless the Board finds that the Veteran has provided competent and credible testimony about his having received psychiatric treatment at VA since 1970.  See Davidson.

The Board also finds that the Veteran and his wife have provided competent and credible testimony about the claimant having observable symptoms of a psychiatric disorder since his 1970 separation from active duty.  Id.  In this regard, the Veteran testified that while on active duty and since that time he had had the same problems with nightmares and suicidal thoughts.  Similarly, the Veteran's wife testified that she has known the claimant since she was a teenager, i.e., for several years prior to his entry into active duty, and reported that the Veteran was outgoing, confident, carefree, and involved in the community prior to service.  She testified that since his discharge, the Veteran has exhibited a change in his personality and has been fearful, anti-social, depressed, jumpy, and easily agitated as well as just wanting to stay in bed. 

Furthermore, in the September 2013 VHA opinion, the doctor opined that the Veteran's service in ". . . Vietnam served as a stressor and made it difficult for him to adjust back to civilian life, and that led to depression and later bipolar disorder."  

On the other hand, the August 2012 VA examiner opined that the Veteran's bipolar disorder was not caused by or a result of service because it appears that his psychiatric history started years after service when he began having bipolar mood swings in his mid or late-twenties.  

As to depression, the Board notes the VHA's opinion that this psychiatric disorder was caused by the Veteran's military service is not contradicted by any other medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

As to the bipolar disorder, the Board does not find the August 2012 VA examiner's opinion probative evidence because it disregards the Veteran's competent and credible testimony regarding receiving psychiatric treatment at VA since 1970 as well as the claimant's and his wife's competent and credible testimony about the appellant having observable symptoms of a psychiatric disorder since his 1970 separation from active duty.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative).

Accordingly, the Board finds the September 2013 VHA opinion, which coincides with both the competent and credible lay claims as well as the medical evidence found in the claims file, to be the most probative evidence of record.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).  Therefore, the Board finds that the record contains medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson.

Given this record, which includes a diagnosis of current psychiatric disorders (depression and a bipolar disorder), competent and credible lay evidence of an in-service injury, and a competent and credible medical opinion linking his current psychiatric disorders to his verified service in the Republic of Vietnam, the Board finds that service connection for depression and a bipolar disorder is warranted.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).


ORDER

Service connection for depression and a bipolar disorder is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs