Citation Nr: 1343447 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-23 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), posttraumatic stress disorder (PTSD), and psychotic disorder NOS. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1974 to May 1976. The appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a July 2007 substantive appeal the Veteran requested a Board videoconference hearing. However, he withdrew that request in writing in November 2007. The Board remanded the claim in March 2011, and it now returns to the Board for further review. The Board has herein recharacterized the claimed to better reflect the clinical record and current treatment diagnoses. The recent evidentiary record-including the Veteran's assertions in the present claim and treatment records-reasonably raises a request to reopen a previously denied claim for headaches, and raises an implied claim for traumatic brain injury (TBI). The headache and TBI claims are not developed on appeal and hence are not before the Board for appellate review. They are accordingly referred to the RO for appropriate action. FINDING OF FACT Affording the Veteran the benefit of the doubt, an acquired psychiatric disorder developed in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, best characterized as psychotic disorder NOS and depressive disorder NOS, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Pertinent Laws and Regulations Governing Claims for Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). To establish service connection for a disability, a claimant must submit evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may also 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. 38 C.F.R. § 3.303(d). 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). Lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this, as in any other case, it remains the duty of the Board as the fact finder to determine the relative credibility of the evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). The U.S. Court of Appeals for the Federal Circuit held, in Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006), that the Board is obligated to, and fully justified in, determining whether lay testimony is credible in and of itself, and that the Board may weigh the absence of contemporary medical evidence against lay statements. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "it is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519. II. Claim for Service Connection for an Acquired Psychiatric Disorder The Veteran's service medical records document an assault on the Veteran with resulting head trauma. An October 1975 treatment record reflects the Veteran's report of trauma to the right eye in a fist fight three days earlier with complaint of pain in the right eye when he moved the eye. The treating clinician assessed a trauma to the head and prescribed Darvon with aspirin. Subsequent service treatment records appear to reflect personality issues as well as mental difficulties. The Veteran reported to his chaplin addressing hatred toward his mother. A history of abuse and neglect of the Veteran by his mother is reflected in service records, and the Veteran's feeling, of themselves, were not judged in treatment records to be without factual foundation. However, he was referred to mental health service for a consultation evaluation. The psychiatric evaluation, dated January 6, 1976, notes various difficulties the Veteran had in childhood, and the examiner assessed an immature personality disorder. However, the examiner also noted that the Veteran had some suicidal ideation during the interview, and was observed to have a mood "of mild depression." Despite these observations, the examiner asserted that there was "no evidence of a psychosis, neurosis, or neurologic disease," and instead found that the Veteran was "not amenable to counseling by command or by psychiatry." The examiner further found that the Veteran was "not motivated to complete his enlistment" due to "defective attitude towards the Marine Corps" with his "behavior likely to deteriorate." The examiner additionally concluded, "No psychiatric treatment required at this time." A treatment record four days prior on January 2, 1976, notes complaints of dizziness, frontal headaches, dyspnea, and nausea and vomiting. This was noted to have continued for an unknown number of days. Prescribed treatment included aspirin every four hours, and Compazine every six hours. The Board notes that Compazine is used to treat nausea and vertigo, but is also an anti-psychotic. The January 6, 1976 evaluation neglected to note any recent or ongoing treatment for headache or nausea or mental difficulties. The Board considers this assessment and conclusions to be suspect in their emphasis on a personality disorder without recognition of apparent mental health or central neurological difficulties (including headache) of recent origin following the Veteran's October 1975 head trauma. Despite the January 6, 1976, examiner's conclusion that no psychiatric treatment was required, the service records reflect some subsequent mental health treatment. That subsequent record of in-service psychiatric difficulty is clouded somewhat because the Veteran was shortly thereafter also treated for the flu, as assessed in a January 29, 1976 treatment record, with symptoms including dizziness, headaches, and sore throat of two days duration, as well as high fever. Subsequently, on February 6, 1976, the Veteran was seen at a neuropsychiatric clinic for "a nightmare about his mother in which he stabbed and shot her." The Veteran then also reiterated a "hatred for the Corps and his refusal to work." The examiner, who was one of the two who had signed the January 6, 1976 evaluation report noted that the Veteran again had suicidal ideation, but again concluded, "No evidence of a thought disorder, psychosis, or neurosis." The examiner again assessed, "Immature personality disorder." The examiner then prescribed a plan consisting of (1) Referral to the commanding officer for appropriate "immed[iate] action," (2) no psychiatric treatment, and (3) "May return to this clinic [as needed]." The second and third points of the plan appear to contradict each other, since this was a neuropsychiatric clinic, and hence a return to the clinic for care would reflect psychiatric treatment. However, the plan as a whole and the associated assessment appear tailored to removal of the Veteran from military service without establishing any psychiatric disability. Consistent with this, the Veteran's separation examination in May 1976 provides no mention of psychiatric evaluation or findings, or even of the assessed immature personality disorder. The record reflects an evidentiary gap, without any documented psychiatric care between service and 2006. VA treatment records beginning in 2006, as discussed below, document the Veteran's reports of headaches, mental health difficulties, and personality changes all originating with his head trauma in service in 1975. The Veteran's post-service history is notable for a history of substance abuse, in particular alcohol abuse, though with the Veteran reportedly not having abused drugs or consumed alcohol for the past 20 years. In an October 2004 claim the Veteran asserted that he had headaches as residuals of a head injury in June 1975. The assertion that the head injury occurred in June appears inconsistent with the service treatment records, but the year 1975 is not. The Veteran then informed in the October 2004 statement that while off post at a bus station he was hit by someone while at a bus stop "for no reason," and struck his head on a six-inch steel post. He then reported that he was treated at Piedmont Medical Center in Rock Hill, North Carolina, when he was given an aspirin and sent home. He further asserted that he took the hospital release papers to his base, and that these papers should be in his service treatment records. He asserted that he had headaches since that time, and self-medicated with Advil Migraine. As already noted, the service treatment records reflect a head injury in October 1975, not June 1975. The Veteran's service treatment records folder does not contain records of this reported treatment at the Piedmont Medical Center. In an August 2006 VA mental health intake triage consultation, the Veteran reported that he had been separated from service due to mental health problems related to family, work, and difficulty with his girlfriend. However, the examiner also noted that the Veteran reported having a history of a fight in service, receiving a blow to the head, and generally having emotional problems following that blow to the head. At the August 2006 evaluation the Veteran reported quitting his job as a truck driver two-and-a-half years earlier due to back pain and limited mobility, and currently struggling financially. He and his family recently lost their home despite his wife and son working to support them, and the family was living currently in housing provided by their church. He reported having feelings of worthlessness to his family and suicidal ideation. The examiner assessed depression. Thus, as reflected in VA psychiatric treatment records, medical, financial, and family difficulties in recent years have played a role in current depression, with manifested suicidal ideation. Similarly, difficulties in service produced suicidal ideation, as well as emotional difficulties, following his in-service head trauma. VA treatment records in January 2007 reflect improved symptoms with psychiatric medication, including reduced anxiety and irritability. The Veteran contacted the VA mental health clinic in May 2007 to request a statement regarding depression, for VA benefits purposes. He was accordingly evaluated at the clinic in June 2007. An examiner then noted that the Veteran was being treated for major depression with recurrent episodes and psychotic features. The Veteran then again recounted his history of a head injury striking a steel beam in service with loss of consciousness, and private hospital treatment. The Veteran reported that following the incident he developed severe headaches, bad dreams, and anger issues. The examiner diagnosed dysthymic disorder, PTSD, psychotic disorder NOS, headache, and depressive disorder NOS. The examiner related the diagnosed PTSD to the incident in service when the Veteran received a blow to the head. The claims file also contains a February 2008 VA mental health assessment by a psychiatrist based on review of the Veteran's history and clinical evaluation. The psychiatrist noted that the Veteran received mental health treated in service for symptoms including recurrent nightmare of killing his mother and others, and suicidal ideation. The psychiatrist further noted that the Veteran was discharged from service for what was, by her assessment, "mental health incapacity." The examining psychiatrist in February 2008 diagnosed the following Axis I disorder as having been present in service: "Depression, severe with psychotic features with associated alcohol dependence, polysubstance abuse including cannabis, amphetamines, and cocaine." The examiner noted that the Veteran had been abusing drugs when separated from service, but that he was abstinent of drug abuse since 1987, and abstinent of alcohol use since 1994. The examiner further noted that the Veteran was currently stable with VA ongoing treatment for diagnosed chronic PTSD, depressive disorder NOS, and psychotic disorder NOS. In a September 2011 VA psychiatric examination and an April 2012 addendum report, the examiner emphasized inconsistencies in the Veteran's mental health presentations over the years, and found these inconsistencies supportive of the Veteran's current mental conditions not being causally related to "in-service personal assault." The examiner apparently thereby concluded that there was "no connection" between the Veteran's military service and his diagnosed depressive disorder and psychotic disorder. The examiner also found insufficient evidence to support PTSD due to that asserted in-service personal assault. The September 2011 examiner's reasoning is substantially circular and not ultimately supportive of his conclusions. In essence, the examiner asserts that because the Veteran's psychiatric complaints or presentations are inconsistent, they do not consistently support a link between service and current psychiatric disability. This rationale, however, does not address the appropriate question, namely, whether the Veteran's psychiatric disability had its origin in service. Inconsistent psychiatric presentation, associated with the Veteran's medically noted intermittent psychiatric difficulties, would not appear to be inconsistent with an onset in service. The Board accordingly finds the conclusions of the September 2011 examiner and his April 2012 addendum to be of less probative value, both because they do not appear to address the most relevant psychiatric questions, and because they are not adequately supported by the evidentiary record. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board also does not believe that the present claim turns on the question of PTSD or even of personal assault. Rather, the service medical records document mental health difficulties which include depressed mood, suicidal ideation, nightmares, and intolerance of present circumstances, which psychiatric symptoms the in-service examiner in January 6, 1976, and February 6, 1976 assessments, attributed entirely to "immature personality disorder" notwithstanding the history of in-service head trauma, onset of headaches, nausea, and vomiting, and the prescription in service of anti-psychotic drugs. The Board finds these circumstances to be more supportive of the February 2008 VA psychiatrist's assessment of severe depression with psychotic features including associated with abuse of alcohol and drugs. However, service records provide insufficient evidence that these conditions are attributable in their origin to abuse of alcohol or drugs, and accordingly the Board finds insufficient basis to deny the claimed disability as not of service origin as due to abuse of alcohol or drugs, pursuant to 38 C.F.R. § 3.301(d) (2013). The Board has considered the more recent VA mental health assessment in September 2011 and the addendum in April 2012. However, as noted previously, the Board does not find that this assessment adequately considers the service records and their documentation of mental difficulties, including as potentially associated with head trauma in service. Even absent consideration of TBI as a causal element in this case, the Board finds sufficient evidence supportive of the claim for the evidence to be at least in equipoise, so that the benefit of the doubt may be afforded the Veteran, with service connection for an acquired psychiatric disorder thus warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. This is supported both by service and post-service treatment records revealing of psychiatric symptoms generally supportive of post-service treatment diagnoses of psychiatric disability. The Veteran's statements in support of disability of service origin also appear to be sufficiently consistent with the medical treatment evidence of record, to be credible and hence supportive of the claim. Accordingly, service connection for an acquired psychiatric disorder, best characterized based on the evidence as psychotic disorder NOS and depressive disorder NOS, is warranted. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. ORDER Service connection for psychotic disorder NOS and depressive disorder NOS is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs