Citation Nr: 1407636 Decision Date: 02/21/14 Archive Date: 03/04/14 DOCKET NO. 10-01 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression and anxiety. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from September 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In November 2009, the Veteran testified at a RO hearing before a Decision Review Officer (DRO). In August 2010, the Veteran testified before the undersigned during a Board hearing held at the RO. Transcripts of both hearings are of record. Subsequently, the Board remanded this matter for additional development in December 2010. The Board noted in December 2010 that the Veteran filed his initial claim seeking service connection for a variety of different psychiatric disabilities, including depression and anxiety in addition to PTSD. The Board further noted that although the Veteran's claim for service connection for PTSD was denied in the March 2008 rating decision, the Veteran did not appeal the denial of that claim, specifically perfecting his appeal in the instant case only to the claim for depression and anxiety. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), as VA must consider alternative psychiatric disorders within the scope of an initial claim of service connection for a specific psychiatric disorder, the Board found that the Veteran's service connection claim was more accurately classified as one for an acquired psychiatric disorder other than PTSD, to include depression and anxiety. Thus, the Board amended the issue on appeal as reflected above. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence shows that his depressive and anxiety disorders were incurred as a result of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for depressive and anxiety disorders have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis at present for resolution of this service connection claim for an acquired psychiatric disorder without detriment to the due process rights of the Veteran. Service Condition - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the issue of service connection on the merits, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including a psychosis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A psychosis is a chronic disease. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety. Service treatment records show that on his September 1971 report of medical history at enlistment the Veteran replied "no" when asked if he had depression or excessive worry or any other psychiatric troubles. He was noted to be "normal" regarding psychiatric matters on his enlistment examination. The Veteran sought treatment for psychiatric complaints on multiple occasions while on active duty, including three times in October 1971 for situational anxiety. In January 1972 he was seen twice for anxiety and somatic problems. He was seen again in April 1972 for nervousness and worry. It was noted that he would be followed on a weekly basis at the mental health clinic. A July 1972 record noted that the Veteran was seen three times in the clinic, but there was no evidence of a significant psychiatric disorder and his case had been closed in May 1972. The July 1972 record also noted that he had been originally referred for nervousness and paranoia. He was told there was no indication for him to return to the mental health clinic. The Veteran again complained that he "worrie[d] a lot" during a September 1972 treatment visit. However, the Veteran's July 1973 discharge examination found no psychiatric abnormalities. Post-service medical records reflect that treating medical professionals identified the Veteran as primarily experiencing depression and anxiety. VA treatment records are silent regarding treatment for any psychological complaints prior to June 2000, when the Veteran complained of sadness that was not severe enough for him to seek medical attention. In April 2007, the Veteran was seen for complaints of longstanding depression, which he attributed to his experiences in service. Since that time, he attended monthly group counseling sessions and individual sessions. Records from May 2007, June 2007, September 2007, November 2007, and January 2008 identify the Veteran's mental health diagnosis as depression. Further, records from the Vet Center, including a letter written by a social worker at that facility in June 2007, identify the Veteran as having depression and symptoms of PTSD and anxiety. The claims file also reflects that the Veteran sought ongoing psychiatric treatment at that facility. Records from the Social Security Administration (SSA) reflect that the Veteran was diagnosed with an adjustment disorder in a September 2006 mental evaluation conducted pursuant to the Veteran's application for SSA benefits. In August 2007, the Veteran's wife submitted an unsigned statement in which she related that her husband was very irritable, did not sleep much, and isolated himself from family and friends. She also stated that he no longer had an interest in things he liked to do and that he was forgetful. The Veteran underwent a VA mental examination in February 2008. The VA examiner noted the Veteran first sought psychiatric treatment in 2006 at the time of his retirement. It was also noted that the Veteran reported he was mistaken in earlier statements that he had sought psychiatric treatment prior to 2006. The Veteran reported feeling depressed since approximately 1994 and attributed his feelings, in part, to having been "abused" by his superior officers in service and to his fear of being sent to Vietnam. The examiner opined that the Veteran did not exhibit symptoms of PTSD and instead assigned a diagnosis of substance abuse and personality disorder as well as depression not otherwise specified. The examiner also stated that the Veteran's depression was not linked to his claimed in-service stressor, but failed to offer an opinion as to whether it might be etiologically related to his time in service or to the psychiatric problems he complained of while on active duty. The Veteran testified at his RO hearing in November 2009 that his anxiety began during basic training and also involved his fear of being sent to Vietnam. See hearing transcript at p. 4. He said that he consulted mental health while in service because he knew there was something wrong with him that was different from the way he had been. Id. at p. 5. He also testified that he had the feeling that those in the service did not really understand what was wrong with him so he had to deal with his mental health problems on his own. He said that post-service he went to the University of Indiana in the 1980's and after he retired he went to VA for treatment starting in 2006. Id. at pp. 6-7. During his August 2010 Board hearing, the Veteran's attorney noted that there were five different service treatment records which showed that the Veteran complained during service of anxiety, nervousness, and insomnia and requested mental health treatment. See Board hearing transcript at p. 3. The attorney also pointed to documentation showing that the Veteran was depressed during service. Id. The Veteran testified that his psychiatric complaints began during basic training when he was one of the older men in his unit, but with only a tenth grade education and physically not as fit as his comrades. Id. at 5. He also was worried about going to Vietnam, but ended up as a medic in Germany where troops were cared for after their injuries in Vietnam. Id. at 6. He testified that he went to the mental health clinic while in service because he was not feeling right and he was anxious and he could not sleep. He also felt inadequate being stationed in Germany where he did not know the language and did not feel he was qualified to be a medic. Id. at p. 7. He also testified about deciding to go absent without leave at Christmas time in about 1972, Id. at pp. 8-9, and constantly consulting with the chaplain. Id. at p. 13. He also testified about his post-service work, schooling, and mental health treatment. Id. at pp. 14-16. The Veteran underwent a VA mental examination in April 2011. A VA clinical psychologist, after a detailed review of service and post-service treatment records and an examination of the Veteran, provided diagnoses of a depressive disorder not otherwise specified; alcohol dependence in early full remission; cannabis dependence in early full remission; and an anxiety disorder not otherwise specified. The examiner opined that the depression and anxiety disorders were less likely as not caused by or a result of active service. She conceded that the Veteran first had clinically significant anxiety and a depressed mood during service, but stated there was sufficient evidence to contend aspects of service were stressful and that stress caused his depression and anxiety. She noted that the Veteran also conceded alcohol and cannabis abuse as a maladaptive coping strategy and that the Veteran's discharge examination did not reveal any psychiatric problems. The VA examiner found that there was no clear evidence that the Veteran continued to have clinically significant anxiety and depression after active duty. Subsequently, stressors such as a job injury, difficulty getting along with a supervisor, retirement, increased medical problems due to injuries and aging, along with alcohol and cannabis use, caused clinically significant depression and anxiety when the Veteran sought treatment in 2006. Therefore, the examiner thought that the most likely cause of his current episode of clinically significant depression and anxiety was the combination of his most recent chronic stressors and the effects of longstanding maladaptive personality traits. A December 2011 private psychological examination of the Veteran was conducted by P.H.S., Psy.D., a clinical neuropsychologist, and based upon a two-hour clinical interview of the Veteran and an extensive record review, she provided diagnoses of a chronic major depressive disorder and an anxiety disorder not otherwise specified. Dr. P.H.S. opined that the Veteran's "constellation of psychological disorders are at least as likely as not related to experiences sustained during his military tenure." She noted pre-existing depression before service when the Veteran's mother died, but stated it was time-limited. She explained that the Veteran's military service appeared to be the turning point in his life and the beginning of a chronic state of emotional duress and reduced ability to function. After stressful experiences in basic training, he became increasingly distrustful and depressed. There was an onset of anxiety with anticipating deployment to Vietnam followed by guilt and further depression when he assisted Vietnam veterans in Germany. He used alcohol and marijuana to quell his emotional symptoms, a practice she noted that he had continued to the present. She also noted that depression and anxiety symptoms had become more pronounced with his disability retirement and reduced alcohol intake. In addition, Dr. P.H.S. advanced rationales for the Veteran's avoidance of treatment over the years. Based upon a review of all the evidence of record, the Board finds that service connection for depression and anxiety is warranted in this case. As noted above, the Veteran has been provided diagnoses of depressive disorder and anxiety disorder not otherwise specified in both the April 2011 VA mental examination and the December 2011 private psychological examination that have been associated with the claims file. Accordingly, the first requirement for service connection is met as the Veteran has been diagnosed with a current psychiatric disability. With respect to the second and third requirements for service connection, upon review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current psychiatric disorders are related to his period of active service. The Veteran's service treatment records do indicate several instances of psychological complaints and treatment during his period of active duty, although his discharge examination failed to note any psychological abnormalities. The April 2011 VA medical examination and opinion offers a negative nexus opinion while the December 2011 private psychological examination and opinion offers a positive nexus opinion in favor of the Veteran. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence, which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. In this case, the Board finds that the evidence found within the claims file is, at the very least, in equipoise as to the question of whether the Veteran's depression and anxiety are related to service. Granting the Veteran the benefit of the doubt, the Board finds that under the circumstances of this case, the December 2011 private psychological examination and medical opinion by Dr. P.H.S. along with the Veteran's credible testimony and his service treatment records are sufficient to provide evidence of in-service incurrence as well as proof of a nexus, or relationship, between the Veteran's currently diagnosed psychiatric disorders and his period of military service. The Veteran's reports of post-service emotional difficulties are consistent with his complaints during service and are shown to have been adequately addressed by Dr. P.H.S. The Board also notes that even the April 2011 VA examiner's report concedes the Veteran was under stress in service and that it was in-service stress that caused his depression and anxiety at that time. Resolving all doubt in the Veteran's favor, the Board finds that the second and third requirements for service connection for depression and anxiety are met in this case. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that the criteria for service connection for depression and anxiety is met in this case. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection for his claims, service connection for both a depressive disorder and for an anxiety disorder not otherwise specified is granted. ORDER Service connection for depressive and anxiety disorders are granted. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs