Citation Nr: 1340262 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 02-05 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, including secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a June 2011 decision, the Board denied service connection for an acquired psychiatric disorder, including secondary to service-connected disabilities. The Veteran subsequently appealed this issue to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 Order, the Court vacated the portion of the of Board's June 2011 decision concerning the Veteran's psychiatric claim and remanded the issue back to the Board for development consistent with the parties Joint Motion for Partial Remand (Joint Motion). In June 2012, in accordance with the mandates of the Court Order, the Board remanded the issue for a new VA examination. The requested development has been completed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDING OF FACT The Veteran's psychiatric disorder is aggravated by her service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder are met. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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. Service Connection Laws and Regulations A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). In September 2006, 38 C.F.R. § 3.310 was amended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non service-connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's claim for psychiatric disorder was pending before the regulatory change in 2006, so the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change; a version which favors the Veteran since there was no requirement for a pre-aggravation baseline level of disability for the non-service-connected disability. Accordingly, the only matter to be resolved is whether the evidence shows that the Veteran's psychiatric disorder is related to a service-connected disability or disabilities. If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2012). Factual Background and Analysis A VA neurological examination was conducted in September 2003. The examiner noted the Veteran's claim that she had depression secondary to her service connected Bell's palsy. The examiner stated that it was probably a justifiable claim and probably as likely as not that she has reactive depression secondary to the service-connected disability. A VA mental disorders examination was conducted in September 2003. The diagnosis was adjustment disorder, unspecified, chronic. The examiner opined that it was at least as likely as not due to military service, the VA examiner provided no rationale for his finding. In a February 2004 addendum, the examiner opined that the diagnosed adjustment disorder was not related to military service. A VA mental health examination was conducted in March 2006. The Veteran stated that she had been depressed since she was diagnosed with herpes in service. The diagnoses were major depressive disorder, recurrent, moderate; rule out PTSD; and cocaine dependency in sustained full remission. A decision of the Social Security Administration (SSA) granted the Veteran disability insurance benefits, effective April 2006, due, in part, to back disorders and depression. In an April 2007 private psychological evaluation, it was noted that the Veteran frequently complained of back pain. Following psychiatric testing, diagnoses of pain disorder associated with both psychological factors and general medical condition, and depressive disorder were provided. A VA mental disorders examination was conducted in April 2009. The August 2009 VA examiner provided a negative nexus opinion; however, the Court vacated the June 2011 Board decision in large part due to a finding that the April 2009 examination was inadequate. The findings of the April 2009 VA examiner need not be discussed. In an August 2009 treatment note, the Veteran is noted as presenting with a continued depressed mood related to current medical problems. Following remand, the Veteran was afforded a new VA examination in August 2012. The VA examiner stated that the Veteran's major depression was less likely than not caused by her military service. The examiner further found that the Veteran met the criteria for PTSD, and that PTSD was less likely than not caused by her military service and was most likely a result of severe physical, emotional and verbal abuse suffered as a child. The August 2012 VA examiner also found that the Veteran suffered significant social and occupational impairment which were related to her service-connected physical conditions. The examiner explained, however, that while the Veteran's depressive illness may be worsened by her service-connected conditions, it did not impair her beyond her 70 percent total disability rating. In an October 2012 addendum to the August 2012 VA examination report, the same VA examiner noted again that while the Veteran met the criteria for major depression and PTSD, those disorders were less likely than not caused by the Veteran's military service and were most likely a result of childhood abuse. Affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder is warranted. As detailed above, the extensive claim file contains medical opinions for and against her claim for service connection. The evidence in favor of and against the Veteran's claim is, at least, in equipoise. Especially significant are the findings of the August 2012 VA examiner. Despite having reiterated her negative findings in October 2012, in August 2012 the VA examiner stated in no uncertain terms that the Veteran was further impaired by her service-connected disorders. The examiner additionally noted that the Veteran's depressive symptoms may be worsened by her service-connected disabilities. These findings demonstrate the aggravation of psychiatric disorders by her service-connected disabilities. While the August 2012 VA examiner stated that the impairment caused by the Veteran's depressive symptoms were, in effect, already covered by her current total disability rating, such a determination is not the examiner's to make. A medical opinion is only necessary to determine whether or not there is a relationship between the Veteran's service-connected disabilities and psychiatric disorders. The August 2012 VA examiner's finding that the issue of aggravation need not be addressed because the Veteran's present total disability rating is appropriate is of no probative value with respect to the issue of service connection for a psychiatric disorder. The competing medical opinions for and against the claim are, at the least, equal in stature. In such a situation, the Board finds that the evidence of record is in equipoise. The Veteran's claim for service connection is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs