Citation Nr: 1604943 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 12-10 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to September 1970. This matter comes before the Board on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was before the Board in October 2013, when the Board determined Veteran had submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, and remanded the claim on the merits for further development. The matter was again before the Board in December 2014 when the Board remanded the claim for the scheduling of a Board hearing. The matter has now been returned to the Board for appellate consideration. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for 60 days after the hearing to allow the Veteran or his representative to submit additional evidence. Additional evidence has been associated with the record since the February 2014 supplemental statement of the case, to include in November 2015, when the Veteran submitted additional evidence but did not waive review of the evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2015). However, in light of the favorable decision below, there is no need to remand the claim for the additional evidence to be considered. FINDING OF FACT An acquired psychiatric disability, currently diagnosed as anxiety disorder and depression, is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, diagnosed as anxiety disorder and depression, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this decision, the Board grants service connection for an acquired psychiatric disorder. This represents a complete grant of the issue on appeal. Therefore, VA's duties to notify and assist, including pursuant to 38 C.F.R. § 3.103(c)(2) (2015) and Bryant v. Shinseki, 23 Vet App 488 (2010), are rendered moot. Additionally, the Board observes that the grant of the claim renders moot lack of compliance, if any exists, with any prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as psychoses, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). However, the Veteran's diagnosed acquired psychiatric disabilities, of anxiety disorder and depression, are not listed among the psychiatric disorders noted by VA as psychoses. 38 C.F.R. § 3.384 (2015). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran asserts that he developed an acquired psychiatric disorder as a result of his military service. Specifically, the Veteran states such was a result of Vietnam combat service. Specifically, in January 2010 and February 2010 statements, he reported that he was exposed to rocket, mortar and small arms fire, and that fellow soldiers were wounded and killed as a result. Thus, he contends that service connection is warranted for an acquired psychiatric disorder. A review of the Veteran's service treatment records do not reference psychiatric problems during service. However, in October 2015, the Veteran testified he began experiencing feelings of nervousness during service. Moreover, the Veteran's DD 214 documents that he was awarded multiple awards including the Bronze Star. The text for the award of his Bronze Star specifically stated such was for outstanding meritorious service in connection with ground operations against a hostile force in the Republic of Vietnam during the period from October 1968 to May 1969. Moreover, a June 2010 response from the Defense Personnel Records Information System generally verified the Veteran's account of experiencing enemy fire with respect to his unit, although the specific whereabouts of the Veteran could not be confirmed in regard to such. Thus, based on this information, the Veteran's contentions with respect to combat in Vietnam is deemed consistent with the circumstances and conditions of his service and thus, is established by the evidence, notwithstanding that there is no official record of such incurrence during service. 38 U.S.C.A. § 1154(b) (West 2014). In a January 2010 private medical letter, Dr. Liss diagnosed the Veteran with PTSD and linked such to the Veteran's Vietnam combat service. Dr. Liss also noted a diagnosis of attention deficit disorder, which was congenital and life-long. A March 2010 VA treatment record ruled out PTSD but did diagnose anxiety disorder, NOS. A June 2010 VA PTSD examination report diagnosed anxiety disorder, not otherwise specified (NOS) with the caveat that although the Veteran had some reality-based worry and some residuals of having been in combat service; however, such did not add up to a diagnosable mental disorder. A July 2010 VA general examination report reflected diagnoses of PTSD and anxiety disorder. In August 2010, Dr. Liss again provided a medical letter which endorsed a diagnosis of PTSD. In April 2010, November 2010 and October 2011 private medical records Dr. Liss again diagnosed PTSD. A May 2011 VA treatment record diagnosed depression, NOS and a July 2011 VA treatment record diagnosed depressive disorder, NOS, with affective irritability and anxiety. An April 2013 VA treatment record diagnosed depressive disorder, NOS and anxiety disorder, NOS. A December 2013 VA PTSD examination report diagnosed persistent depressive disorder with pure dysthymic syndrome. In a June 2015 PTSD questionnaire, Dr. Liss endorsed diagnoses of PTSD, depression and anxiety. Finally, a June 2015 VA problem list noted Anxiety Disorder, NOS and depressive disorder, NOS. Although Dr. Liss diagnosed PTSD, such has not been consistently diagnosed by a VA medical provider but in fact has been specifically ruled out several times. Moreover, the December 2013 VA examiner specifically addressed the diagnosis of PTSD provided by Dr. Jay Liss and noted evidence of frequent panic attacks, difficulty in understanding commands, impaired memory, or difficulty maintaining effective work and relationships was not reported nor elicited during the current examination but had been reported by Dr. Liss. The December 2013 VA examiner also stated that the Dr. Liss' report did not provide raw scores or normative interpretations, therefore, the VA examiner unable to comment on the contributory nature of these objective tests. Thus, in light of these findings, the Board finds that the evidence shows that the Veteran's acquired psychiatric disorder is best characterized as anxiety disorder and depression. Therefore, the current disability element for an acquired psychiatric disorder is established by the evidence. The Veteran is competent to describe the symptoms of feelings of anxiety and depression and when the symptoms onset. Thus the Veteran's lay belief that his acquired psychiatric disorder is related to service could have sufficient weight to establish the nexus element. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board notes that a valid medical opinion is not required to establish nexus. Id. As discussed above, in an October 2015 testimony, the Veteran indicated his nervousness onset during service. The Veteran also reported outbursts during his first position of employment after service in 1970. He also testified that at every job he has experienced some kind of conflict. The Veteran is competent to report on these symptoms as they are based on his experience and personal knowledge and come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is credible with respect to his assertions of experiencing anxiety and depression during and since service. Moreover, such is supported by November 2015 statements from his mother and his ex-wife, who each stated that the Veteran had changed after his Vietnam service. An indication of such changes is also supported by the Veteran's service personnel records which reflect he was recommended for separation from service as a result of a conviction by a civil court as well as being absent without leave. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection [,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see 38 U.S.C.A. § 1154(a)(requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). The Board finds the Veteran's contentions as to the onset of his anxiety and depression to be credible and such is accorded significant evidentiary weight. However, as noted above, the June 2010 VA examiner found the Veteran had some reality-based worry and some residuals of having been in combat service; however, such did not add up to a diagnosable mental disorder. The June 2010 VA examiner thus found it was less likely than not that the Veteran had PTSD or another psychiatric disorder secondary to his time in the service, and that even if he had more symptoms, there was no clear relationship between the symptoms and his reported stressor. Additionally, a July 2010 VA PTSD addendum opinion found it was at least as likely as not that the Veteran's anxiety disorder did not have a clear evidentiary relationship or even a speculatively dynamic one to his claimed stressors in Vietnam; however, such appears to rely upon stressors necessary for a PTSD diagnosis rather the standard necessary to establish a nexus with respect to anxiety disorder. The December 2013 VA PTSD examination report also provided a nexus opinion. The December 2013 VA examiner stated the etiology of the Veteran's persistent depressive disorder was indeterminate but further stated that although it was conceivable that the Veteran's emotional disposition may have been affected by his experiences in the service, no direct evidence was elicited solidifying a connection between his mood disorder and trauma exposure. The December 2013 VA examiner further stated that the factors which have likely impacted the Veteran's longstanding mood include marital difficulties, health issues, and financial stress. However, December 2013 VA PTSD examiner appears to have been using a standard other than an equipoise standard and utilizing a self-imposed standard of direct evidence. For these reasons the VA opinions lack probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds the Veteran's credible statements as to the onset of his psychiatric symptoms are sufficient to outweigh the opinion of the July 2010 and December 2013 VA examiners. The Board finds that the Veteran is both competent and credible to report the manifestations of his anxiety disorder and depression during and since service. At the least, this evidence raises reasonable doubt as to whether the Veteran's anxiety disorder and depression are etiologically related to service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that anxiety disorder and depression are in fact related to service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Thus, the Board concludes that service connection for anxiety disorder and depression is warranted. ORDER Entitlement to service connection for acquired psychiatric disability, diagnosed as anxiety disorder and depression, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs