Citation Nr: 1336819 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-18 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1992 to February 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2012, the Veteran testified via video conference from the RO before the undersigned. FINDING OF FACT A psychiatric disability, currently diagnosed as major depressive disorder and generalized anxiety disorder, is attributable to service. CONCLUSION OF LAW A psychiatric disability, currently diagnosed as major depressive disorder and generalized anxiety disorder, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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. In addition, a psychosis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The STRs reflect that beginning in October 1993, the Veteran was seen with reports of sleepwalking episodes. The Veteran indicated that he historically had episodes at ages 6 through 8 years. His episodes during service were witnessed. By the end of October 1993, the Veteran indicated that he wanted to be discharged from service. An examiner noted that psychiatric evaluation was within normal limits. A November 1993 separation examination indicated that the Veteran was psychiatrically normal. However, by January 10, 1994, it was noted that the Veteran had a personality disorder, not otherwise specified (NOS), with narcissistic and borderline features, and was recommended for administrative discharge. The Veteran was also noted to use alcohol and tobacco excessively. Otherwise, the inservice examiner indicated that the Veteran did not have psychiatric disease or disorder. On his January 14, 1994 Report of Medical History which the Veteran completed, he indicated that he did not have depression or excessive worry or nervous trouble of any sort. However, he also indicated that he did not have frequent trouble sleeping, despite the multiple episodes of sleep walking. The separation examination conducted on that same day also stated that the Veteran was psychiatrically normal. On January 20. 1994, it was noted in the STRs that the Veteran had no psychiatric disorder and was fit for duty or separation. Post-service, in March 1998, the Veteran was admitted on an emergent basis to a private medical provider for an anxiety attack/panic attack. In December 2007-2008, the Veteran was treated at St. John Health for anxiety/anxiety attack and depression. In 2008-2009, he continued to have difficulties with anxiety and depression as shown in employment records. In support of his current claim for service connection for a psychiatric disability, private medical records have been received. The Veteran was evaluated by M.W.R., PhD., 2009. The Veteran underwent psychiatric testing which likely showed Axis I diagnoses of bipolar disorder and generalized anxiety disorder. His Axis II diagnosis was borderline personality disorder, negativistic personality disorder with paranoid and antisocial personality features. In a December 2009 letter, Dr. R. opined that it was as likely as noted that many of the Veteran's emotional difficulties were caused by his military service. It was noted that the Veteran's discharge had been upgraded to honorable. In March 2010, the Veteran was afforded a VA examination which yielded a diagnosis of mood disorder, NOS. The Veteran reported to the examiner that his grandmother died while he was in service and he had an emotionally difficult time. He felt that the military did not support him and he became indifferent in his attitude. He was disrespectful to officers and was discharged with a general discharge which was later upgraded to honorable. The examiner did not provide an opinion regarding the etiology of the Veteran's psychiatric disability. In June 2010, the VA examiner provided an addendum in which it was indicated that the Veteran's current mood disorder/personality disorder was not caused by his service-related experiences. Ina July 2010 letter, H.M., M.D., stated that the Veteran was a patient at the Biological Psychiatric Center, P.C., for treatment of major depressive disorder, recurrent and moderate. It was noted that the Veteran first had treatment of this diagnosis in March 1998, although the records had been destroyed since they were dated more than 7 years ago. It appears that this treatment and diagnosis followed the emergency treatment for the anxiety attack/panic attack. In October 2010, the Veteran was examined in conjunction with his claim for Social Security Administration (SSA) benefits. The examiner noted that the Veteran had a diagnosis of a personality disorder in January 1994. The examiner also noted that the Veteran reported that he had panic attacks and depression at this time, but that the military did not care. He was diagnosed as having an adjustment disorder, rule out bipolar disorder. The Veteran then participated in weekly therapy sessions. Records of the Sacred Heart Rehabilitation Center, Inc., noted that the current diagnosis for the Veteran was major depressive disorder, recurrent, and generalized anxiety disorder. In the report, it was noted that the Veteran stated that he began to experience symptoms of depression at age 19 (while in military service) and first sought treatment in his early 20's. At his January 2012 hearing, the Veteran testified that his grandmother passed away in January 1993. He said that he was permitted by the military to return home for 10 days, but remained depressed and sad when he returned. He indicated that he spoke to the chaplain and approached his chain of command and was essentially told to toughen up. He said that he was diagnosed with a sleep disorder and his situation worsened to the point that he just did not care and he began disrespecting others. This prompted a downfall for him. Prior to that time, the Veteran related that he had been an outstanding performer. After service, he related that he was treated for his depression and he also began having episodes of hyperventilation. The Veteran did not recall the name of his counselor that he saw immediately after service. However, he indicated that he began seeing a psychiatrist in 1998. In this case, the Veteran is fully competent to attest to his observations of his psychiatric symptoms, to include attesting as to symptoms in service, and as to how these symptoms, depression and anxiety, persisted after discharge. Layno; 38 C.F.R. § 3.159(a)(2). The Board finds that such competent lay statements of the Veteran as to symptoms that supported the later psychiatric diagnoses by medical professionals provides an etiologic link to service which must be afforded probative value as the Veteran has credibly testified in this case. See Davidson; Jandreau. In sum, a review of the record clearly shows that the Veteran underwent psychiatric evaluation during service which concluded he had a personality disorder, but no other psychiatric disease. However, the Veteran has competently and credibly testified that he experienced a death in his family during service became depressed, had sleep related problems, and his performance and attitude plummeted. This testimony is generally supported by the STRs which documented the sleepwalking episodes and that the Veteran was administratively discharged, expressing also his desire for a discharge. Although there was no mention of depression or anxiety, the post-service evidence repeatedly shows that the Veteran told examiners that the onset of his depression and anxiety occurred at age 19. These reports are probative because the Veteran was seeking medical treatment at the time. Further, the Veteran began regular psychiatric treatment in 1998 which apparently continued with a degree of regularity until the present time. There have been variances in the diagnoses over the years. Initially, the STRs indicated a personality disorder which was at times again diagnosed after service. However, a personality disorder is not among the current diagnoses. Rather, the Veteran has also been diagnosed as having depression, anxiety, a bipolar disorder, an adjustment disorder, and, currently, major depressive disorder and generalized anxiety disorder. The VA examiner opined that the Veteran's mood disorder was not related to service while a private examiner dated the onset of psychiatric disability to inservice inception. Both performed psychiatric evaluations and generally reviewed the Veteran's history. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, both opinions are probative, while rendering different conclusions. The Board finds, however, that in view of the longitudinal record here of continuous psychiatric symptoms and diagnoses since service, as well as the competent and credible testimony of the Veteran, the evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a psychiatric disability, currently diagnosed as major depressive disorder and generalized anxiety disorder, is warranted. ORDER Service connection for a psychiatric disability, currently diagnosed as major depressive disorder and generalized anxiety disorder, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs