Citation Nr: 1432467 Decision Date: 07/21/14 Archive Date: 07/29/14 DOCKET NO. 12-09 498 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES Entitlement to service connection for a psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1964 to March 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from April and August 2010 rating decisions of the RO in Buffalo, New York, which denied service connection for an anxiety disorder. The Board notes that in a rating decision dated November 2008 the RO denied service connection for PTSD. Service connection for PTSD was denied due to the absence of a current diagnosis of PTSD, no evidence of PTSD in service, and an inability to verify the claimed in-service stressor. Further, the RO noted that VA and private medical records showed that the Veteran was diagnosed with an anxiety disorder and depression; however, service connection could not be granted as there was no medical evidence linking these psychiatric disabilities to service. Pursuant to 38 C.F.R. § 3.156(b) (2013), when new and material evidence is received prior to the expiration of the one-year appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period; as such, reconsideration of the issue is necessary. New evidence is defined as existing evidence not previously submitted to agency decision makers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In August 2009, within the one year appellate period of the November 2008 PTSD service-connection denial, VA received a private treatment record from a physician who had been treating the Veteran since 1979. The letter indicated that the physician had continuously treated the Veteran for depression and PTSD over the years, and that "current medical thinking" would link these psychiatric disabilities to the Veteran's years of service. This evidence was new and material as it indicated that the Veteran had a current diagnosis of both PTSD and depression, and it established that the diagnosed psychiatric disabilities may have been related to service. For the above reasons, the April 2010 rating decision denying service connection for an anxiety disorder was not a separate decision from the previous PTSD denial, but was, in effect, a reconsideration of the November 2008 denial. This interpretation is bolstered by the fact that the November 2008 PTSD denial had discussed both anxiety and depression in addition to PTSD, and by the fact that the issue of new and material evidence was not raised by the RO at any point during the pendency of this appeal. As such, the issue on appeal stems directly from the November 2008 rating decision denying service connection for PTSD (later broadened to include other diagnoses); therefore, the Board need not consider whether new and material evidence has been received to reopen the previously denied claim. In order to encompass all claimed symptoms of disability, the Board has broadened and reframed the issue on appeal to entitlement to service connection for a psychiatric disorder, to include anxiety, depression, and PTSD, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. Additional medical records were added to the Virtual VA file which have not been considered by the RO and for which no waiver has been provided; however, as the Board is granting the claim for service connection for a psychiatric disorder, which constitutes a full grant of the benefits sought on appeal, the Veteran is not prejudiced by the Board considering this evidence in the first instance. The Veteran testified from Buffalo, New York, at a July 2014 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. At the Board hearing, the Veteran testified that he is no longer represented in his appeal and is continuing pro se. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is currently diagnosed with the psychiatric disabilities of anxiety and depressive disorders. 2. The Veteran experienced a traumatic in-service event in which he was awakened and threatened with violence if he did not assist a sergeant in covering up a rape that the sergeant had committed. 3. The currently diagnosed psychiatric disabilities of anxiety and depressive disorder are related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a psychiatric disorder, to include anxiety and depression, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this decision, the Board grants service connection for a psychiatric disorder. As such action represents a complete allowance of the Veteran's claim, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for a Psychiatric Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, both anxiety and depressive disorders are not "chronic diseases" listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive service connection provisions based on "chronic" in service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran contends that he is entitled to service connection for a psychiatric disorder due to a traumatic event that he experienced in service. Specifically, the Veteran has advanced, in various statements throughout the course of this appeal, that one evening while he was stationed at Fort Devens, a sergeant raped a civilian and then attempted to cover up the crime. The sergeant entered the Veteran's barracks and held a trenching tool menacingly over the Veteran's head as he woke the Veteran from sleep. He then threatened the Veteran in order to obtain the Veteran's assistance in covering up the crime. The sergeant was looking to change into a new uniform, and he concealed his own blood-strained uniform in the Veteran's laundry. While the sergeant was caught almost immediately and subsequently incarcerated, the incident has had long-lasting repercussions for the Veteran, as he still obsesses over the incident and his failure to act when threatened. Initially, the Board finds that the Veteran is currently diagnosed with a psychiatric disability. The report from a March 2012 VA mental health examination, along with both VA and private medical records, reflect that the Veteran has been diagnosed with both anxiety and depressive disorders. Next, after a review of all the evidence of record, lay and medical, the Board finds the evidence is at least in equipoise as to whether the Veteran's claimed traumatic in-service event occurred. In November 2008, VA was informed that the U.S. Army Crime Records Center was unable to locate any records related to the incident. Further, the Veterans service records do not disclose that such an event occurred, and VA has not received any lay statements from any other individuals involved in the incident. Supporting the Veteran's contention is the fact that both the lay and medical evidence reflects that the Veteran's story has remained consistent throughout the course of this appeal. Further, VA mental health treatment records convey that the Veteran remains particularly fixed on this one incident. The Veteran has received significant VA mental health treatment since at least December 2007, and the records reflect that the rape incident is discussed at almost every session; including sessions in which the examiner is obviously trying to steer away from the incident so that other topics can be broached. Additionally, in an August 2011 statement, the Veteran's wife noted behavioral changes in the Veteran after he returned home from service. Specifically, he began having difficulty sleeping and his drinking worsened. As the evidence is at least in equipoise, the Board resolves reasonable doubt in the Veteran's favor on this question to find that the Veteran experienced a traumatic in-service event in which he was awakened and threatened with violence if he did not assist a sergeant in covering up a rape that the sergeant had committed. Finally, the Board also finds that, after a review of all the evidence of record, both lay and medical, the evidence is at least in equipoise as to whether the Veteran's currently diagnosed anxiety and depressive disorders are related to active service. The evidence weighing against a finding that the psychiatric disabilities are related to active service include the absence of complaint, diagnosis, and/or treatment for a psychiatric disability in the Veteran's service treatment records. Additionally, in a letter dated May 2010, the Veteran's private physician noted that the depression related primarily to the Veteran's non-service-connected low back disability, although he also advanced that the depression may have existed prior to the back disability. In a January 2013 addendum opinion to the March 2012 VA mental health examination, the VA examiner opined that, due to a number of potentially relevant stressors and the time between the in-service incident and the diagnosis of a psychiatric disability, "it would be speculative to attribute his anxiety disorder, solely or primarily, to such military experiences." The evidence supporting a finding that the Veteran's psychiatric disabilities were related to active service include a letter dated July 2009 from the Veteran's private physician which stated that "current medical thinking" would link the Veteran's psychiatric disabilities to his years of service. In a subsequent May 2010 letter, the private physician specifically opined that the Veteran's anxiety disorder was caused by the in-service traumatic event. A November 2009 VA treatment record reflects that a VA examiner opined that the Veteran's anxiety symptoms were "intrinsically linked with the events of a fellow soldier who sexually assaulted a woman 40+ years ago." Further, while the VA mental health examiner in both the March 2012 report and January 2013 addendum opinion found it too speculative to say that the in-service event was the cause of the psychiatric disabilities, in both cases the VA examiner opined that the in-service event at least contributed to the diagnosed anxiety disorder. The Veteran is currently diagnosed with the psychiatric disabilities of anxiety and depressive disorders, and he experienced a traumatic in-service event which remains the primary focus of his mental health treatment. The Veteran's private physician and various VA examiners have linked the Veteran's psychiatric disabilities to this in-service event. Resolving reasonable doubt in the Veteran's favor, the Board finds that a psychiatric disorder that includes anxiety disorder and depressive disorder was incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a psychiatric disorder, to include anxiety and depression, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs