Citation Nr: 1605440 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 07-10 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Robert Chisolm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating of the Department of Veterans Affairs (VA) Regional Office (RO) Cheyenne, Wyoming. In October 2007, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. This case was remanded for additional development in October 2008, January 2010, October 2011, and October 2012. In a July 2013 decision, the Board denied the Veteran's claim for service connection for an acquired psychiatric disability. The Veteran appealed the Board's decision to the Court. In an August 2014 Order, the Court vacated the Board's July 2013 decision and remanded the matter for readjudication in light of the Joint Motion. In March 2015, the Board denied the Veteran's claim for service connection for an acquired psychiatric disability. The Veteran appealed the Board's decision to the Court. In a September 2015 Order, the Court vacated the Board's March 2015 decision and remanded the matter for readjudication in light of the Joint Motion. FINDINGS OF FACT 1. Clear and unmistakable evidence reflects that the Veteran had a depressive disorder prior to service. 2. The Veteran's pre-existing depressive disorder underwent an increase in severity in service, as shown by service treatment records indicating social isolation, suicidal ideation, thoughts of harming other people, and difficulties controlling his anger. 3. Major depressive disorder was aggravated beyond the normal progression of the disease by his active service. CONCLUSION OF LAW The presumption of soundness regarding a psychiatric disorder is not rebutted. Major depression was incurred in service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2014); 38 C.F.R. § 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. During the October 2007 Board hearing, the undersigned explained the issues on appeal and suggested the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board will therefore proceed to the merits of the appeal. Law and Regulations Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). For service connection claims involving a preexisting injury or disease, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2015). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Analysis The Veteran does not allege and the evidence does not suggest that he engaged in combat with the enemy. As such, 38 U.S.C.A. § 1154(b) does not apply to his claim. The Veteran has not been diagnosed as having a psychosis, consideration of continuity of symptomatology under the provisions of 38 C.F.R. § 3.303(b) is not warranted. A November 1995 report of medical history documents that the Veteran reported a history of depression or excessive worry and indicated that he had been previously treated for depression related to family problems and had also been hospitalized for depression. He stated that he had been hospitalized for two days only and underwent ten sessions of psychoanalysis. The clinical psychiatric evaluation was blank, with a referral for consultation. A subsequent note for item 42 established that the consultation had taken place and there was no psychiatric disorder. Because a psychiatric disorder was not noted at entrance, the appellant is entitled to a presumption of soundness. The presumption may be rebutted by a two-step process. The precise history of pre-service treatment establishes that there is clear and unmistakable (obvious or manifest) evidence of a pre-existing depressive disorder. 38 U.S.C.A. §§ 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). A June 1997 service record shows that the Veteran complained of emotional problems and stress associated with inspection the previous night. He denied suicidal or homicidal ideation but stated that he blacked out for a few minutes and had a history of depression. On objective evaluation, the Veteran was clean and well-spoken. He maintained fair eye contact. At times, he was stressed and agitated. He denied delusions and hallucinations. The assessment was adjustment disorder and possible depression or stress. He was to follow up with a consult. A July 1997 service record shows that the Veteran underwent mental health evaluation. He was referred for an evaluation as to fitness for duty as a result of a violent reaction to stress, which led to vague suicidal ideation. The Veteran reported difficulties with service starting after boot camp. He had recurrent thoughts of harming other people and reported that he may act on those thoughts to harm others if he is retained. He reacted with uncontrolled anger when he was ordered to have his room inspection ready by a certain time. He described similar episodes in the past, in which he had difficulties controlling his anger and broke his hand punching a locker. He described a longstanding history of neither desiring nor enjoying close relationships with other than first degree relatives. He almost always chose solitary activities, took pleasure in few, if any activities, appeared indifferent to praise or criticism of others, and showed emotional coldness, detachment, or flattened affectivity. An August 1998 service record reflected that the Veteran reported for an appointment one year since his last. He still had periods of feeling down and unhappy but they were less frequent. He continued to remain isolated and tended to stay to himself. At times, he reported that he was motivated to complete his active duty service. His frustrations and thoughts of harming others had ceased. Following evaluation, the diagnoses were depressive disorder, by history, in partial remission and schizoid personality disorder. The Board finds that these in-service symptoms of depression represent an increase in disability during such service. 38 U.S.C.A. §§ 1153 (West 2014); 38 C.F.R. § 3.306(b) (2015). On the matter of whether the Veteran has an acquired psychiatric disorder that was aggravated by service, there are many opinions of record, both from VA examiners and from various healthcare providers. With regard to the Veteran's stated opinions, he is certainly competent to provide evidence with regard to that which he experiences, including his symptomatology and its history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, in many cases, laypersons are competent to provide opinions with regard to diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board will address the favorable evidence of record first. The Board has considered the Veteran's statements to the effect that his current psychiatric disorder stem from his service experiences, to specifically military sexual trauma as a result of a hazing-type incident in service. Again, he is competent to report his in-service experiences, though this incident was not specifically documented in service records. The Board finds the Veteran's allegation of an in-service personal assault to be credible due to the consistency with which he has reported this event and the absence of other factors that would reduce his credibility. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In a written statement dated in December 2014, the Veteran's VA social worker indicated that he stood by his records and previous letters, case summaries, and treatment notes. The social worker found the Veteran's report of the in-service sexual trauma to be credible. In so finding, the social worker noted that he observed the Veteran's behavior during treatment sessions, as well as the Veteran's family members during family sessions, which lent credibility to the Veteran. He noted that the Veteran's history and symptom presence had not wavered in years of treatment, which stood in contrast to many other veterans he had treated in 17 years. He opined that, based on clinical work with the Veteran over several years, there was a clear acceptance that his adverse military experiences of such a personal nature contributed immensely to the exacerbation of any depressive qualities and certainly propagated anxiety and panic events. In a December 2014 report, private psychologist Dr. L. noted that he interviewed the Veteran for hours and his records were reviewed. He noted that while the Veteran was hospitalized in 1991 for depression, he was not diagnosed with a psychiatric disorder at service entrance was found qualified for service. The examiner further opined that it more likely than not that the in-service sexual assault and being taunted and ridiculed several years after the assault led to the development of social phobia. He also opined that the Veteran's service aggravated his depressive disorder beyond the course of its natural trajectory. The Board notes that there are multiple medical opinions from VA examiners. The Veteran was afforded examinations in December 2005, August 2009, and March 2010. First, the Board finds that the opinion provided in December 2005 VA examiner's rationale does not consider any other potential causes or aggravations of psychiatric disability, as they may be caused by things other than war zone duty and extreme stress. Therefore, this opinion is afforded only very little probative weight. The Board finds that the opinion provided by the August 2009 VA examiner did not opine as to whether there was clear and unmistakable evidence that the disorders associated with these symptoms existed prior to service and provided no opinion in regard to whether social phobia with anxiety was incurred in or aggravated by service. Given these inadequacies, the Board finds that this opinion is afforded only very little probative weight. In March 2010, the examiner that conducted the August 2009 VA examination reviewed the claims file and indicated that the diagnoses were social anxiety disorder and avoidant personality disorder. The physician did not see service as any contribution to the Veteran's disorder. This problem started in childhood and was worse at age 17. Counseling continued until age 21. His condition was known during service and an ongoing problem, leading to his administrative separation. In November and December 2011, the Veteran's claims file was submitted to three psychologist or psychiatrists for review. The November and December 2011 VA examiners ultimately offered opinions that the Veteran did not manifest an acquired psychiatric disorder that was either incurred in or aggravated by service. In the first November 2011 report, the VA psychiatrist opined that the claimed condition, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service injury, event, or illness. The psychiatrist explained that the Veteran had a history of depression that existed prior to years of service in the Marines, which was waived by the Marines prior to acceptance into service. The absence of hospitalizations and the Veteran's good response to treatment demonstrated that his pre-existing depression was not caused by his experiences in service or worsened by his experiences in service. The Board notes the first November 2011 report failed to address the Veteran's military sexual trauma or provide any sufficient details for finding that his depression was not exacerbated in service. Accordingly, the examiner's opinion and lack of sufficient detail does not justify a determination that the Veteran's psychiatric disability as not aggravated by service. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). The second November 2011 VA report shows that a psychiatrist opined that the Veteran's claimed disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In addition, he opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The Board finds that the second opinion provided in November 2011 by a VA examiner contains only a bare conclusion that is not supported by any kind of reasoned rationale. The examiner simply gives an opinion without explaining why that opinion is supported by the evidence in the record. As such, this opinion and report are afforded only little probative weight. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the December 2011 VA record, a psychiatrist provided an opinion that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the identified condition, which existed prior to service, was addressed on his entry examination in November 1995 as well as in July 1997. There were no injuries, events, or illnesses which occurred while in service noted in the claims file that would have contributed to or aggravated the identified psychiatric illness. The March 2010 and December 2011 VA opinions contain one inaccuracy that slightly lowers their probative value. Both examiners indicate or imply that the Veteran was administratively separated from service or separated due to his inability to adapt. However, a review of the Veteran's service records shows that this is not the case. While he was recommended for separation when he was first psychiatrically examined in July 1997, he was instead afforded psychiatric treatment while in service. After one year of such treatment, it was determined that no further counseling was necessary, and the Veteran served out the remainder of his term. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board finds that the opinion from Dr. L is consistent with the record and based on the facts of the case. Dr. L supported his opinion that the Veteran's depressive disorder was aggravated by service in noting that the Veteran had reported in multiple contexts the high level of anxiety he experienced during his service due in part to the sexual assault and the harassing and isolative behavior afterwards. He reported that he had panic attacks in service, and required accommodations in a college classroom shortly after leaving service. The Board finds that this opinion is consistent with the treatment the Veteran received in service for complaints of social isolation, suicidal ideation, thoughts of harming other people, and difficulties controlling his anger. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008) As noted above, the Board finds that there is clear and unmistakable evidence that the Veteran manifested a depressive disorder prior to service; and the Veteran's pre-existing depressive disorder underwent an increase in severity in service. Therefore, the burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). See also Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Here, the Board finds that the record contains a probative opinion in support of the claim from Dr. L. In contrast, the record contains opinions that weigh against the claim that have limited probative value. These opinions are the first November 2011 report and the March 2010 and December 2011 reports. In weighing the probative value of the favorable and unfavorable evidence, the Board finds that the record is in relative equipoise as to whether the Veteran's depressive disorder underwent an increase in severity due to the natural progress of the disease. The benefit-of-the-doubt doctrine is therefore applicable, and VA has not successfully rebutted the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See 38 U.S.C.A. § 5107(b)(2014); 38 C.F.R. § 3.102(2015); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for depressive disorder is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs