Citation Nr: 1633091	
Decision Date: 08/19/16    Archive Date: 08/26/16

DOCKET NO.  09-19 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include bipolar II disorder, depression, and posttraumatic stress disorder (PTSD).

(The issue of entitlement to an initial compensable rating for bilateral hearing loss will be the subject of a separate decision under the same docket number).


REPRESENTATION

Appellant represented by:	Timothy M. White, Esq.


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from May 1982 to April 1986.  Further, the record indicates she had additional service in the Reserves.

The Veteran's psychiatric disorder claim is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma

The Veteran provided testimony on her psychiatric disorder claim at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2016.  A transcript of this hearing is of record.


FINDINGS OF FACT

The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed chronic depression during her active service; and that the depression has been aggravated by her service-connected hepatitis C.


CONCLUSION OF LAW

The criteria for a grant of service connection for depression are met.  38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In this case, the Veteran has indicated that her current psychiatric disorder is directly related to service.  Among other things, she has indicated that she felt depressed about having a child which she gave up for adoption during her active service.  This matter is documented in the service records.

In addition, the Veteran has indicated her psychiatric disorder is due to in-service sexual assault, and provided details thereof.  Although there is no record of such an assault in the Veteran's service records, the Board finds the Veteran's statements and hearing testimony on this matter to be credible.  Moreover, there is other supporting evidence in the record.  For example, the service treatment records note she was treated in August 1983 for jaw pain due to being hit x 3 days.  Other notations indicate this was at least a physical assault.  In addition, when service connection was established for hepatitis C in an October 2013 rating decision, VA acknowledged there was "shred of evidence that does support a marker for an unhealthy and abusive sexual relation in 1983."  Consequently, the Board concludes there is competent and credible evidence that the Veteran was sexually assaulted during her active service.

The Board notes that the post-service medical records reflect the Veteran has received various diagnoses for her acquired psychiatric disorder, to include depression.  A review of these records reflects that her depression is due to a variety of factors regarding her life.  As such, it would appear that the in-service events of giving her child up for adoption, and the sexual assault, would be a factor in her depression.  In fact, records from June 1998 discuss her psychiatric treatment in terms of being a survivor of sexual assault.

The Board further notes that an August 2014 VA examination indicates the Veteran's depression is of a long standing nature.  In pertinent part, the examiner opined that the Veteran's depression likely began in childhood due to sexual abuse by close family members; and noted she was treated for depression during service but those records were not available for review.  However, this indicates that the Veteran had a psychiatric disorder that pre-existed service, but no such disability was noted at the time of her entry into service.  As such, she is presumed to have been in sound condition at the time of her entry into service.  See 38 U.S.C.A. § 1111.  Moreover, the first documented competent medical treatment in the record for psychiatric problems appears to be during her active service.  For example, service treatment records reflect she was treated for complaints of insomnia and stress in September 1983.  Additionally, a September 1983 psychology consultation report includes an impression of adjustment disorder with mixed emotional features.

In view of the foregoing, it does appear from the competent and credible evidence of record that the Veteran developed chronic depression during her active service.

The Board also notes the Veteran's original claim was for depression secondary to her service-connected hepatitis C.  Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The Board acknowledges that the effect one disability has upon another involves complex medical issues, and usually requires competent medical evidence to resolve.  Here, the August 2014 VA examination includes an opinion against the Veteran's psychiatric disorder being secondary to her service-connected hepatitis C.  However, the VA examiner's rationale was that the depression preceded the development of the hepatitis C.  It does not appear the VA examiner explicitly addressed the matter of secondary aggravation in accord with Allen, supra.  The medical treatment records include references to the Veteran having feelings of depression related to her medical problems, and she has provided credible testimony on this subject at her April 2016 hearing.  As such, it does appear the Veteran's depression has at least been aggravated by her service-connected hepatitis C.

In addition to the foregoing, the Board notes that the law mandates resolving all reasonable doubt in favor of the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  The Court stated in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. 

In view of the foregoing, the Board finds that service connection is warranted for the Veteran's depression.  The Board acknowledges that the Veteran has received various diagnoses for her acquired psychiatric disorder, to include bipolar disorder and PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  However, at the April 2016 hearing the Veteran indicated that a grant of service connection for any acquired psychiatric disorder, however diagnosed, would satisfy her appeal as to this claim.  Therefore, the Board need not address whether service connection is warranted for the other diagnoses.


ORDER

Service connection for depression is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs