Citation Nr: 1642904 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 02-22 293 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for major depressive disorder. REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to October 1970. This case initially came to the Board of Veterans Appeals (Board) from a January 2002 decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri, that determined that new and material evidence had not been received to reopen a claim for service connection for depression. The Veteran testified at hearing in September 2005; a transcript of that hearing is of record. In May 2006, the Board denied an application to reopen the service connection claim. In November 2007, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the case back to the Board. In April 2008, the Board reopened the service connection claim and then remanded it for private treatment reports and Social Security Administration (SSA) records. In February 2009, the Board denied service connection for a psychiatric disorder characterized as depression; however, in September 2010, the Court again vacated and remanded the case back to the Board. In February 2011, the Board remanded the case for a videoconference hearing before a Veterans Law Judge, which was held in May 2011. The transcript from that hearing has been associated with the claims file. The issue was then remanded by the Board in August 2011 for further development. In September 2012, the Board denied service connection for a psychiatric disorder characterized as depression; however, in February 2013, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded that issue back to the Board for action consistent with the terms of the JMR. In August 2013, the RO denied a claim for service connection for posttraumatic disorder (PTSD). The Veteran filed a notice of disagreement with this decision in July 2014. In the Board's June 2015 remand, the Board recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the record also reflects that the Veteran was diagnosed with bipolar disorder, panic disorder, and dysthymia. However, as explained below, the Board need not separately address the issues of entitlement to service connection for PTSD and these additional diagnoses. The Veteran testified at a hearing before the undersigned in August 2016, and a copy of the hearing transcript is of record. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's major depressive disorder is causally related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, major depressive disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). In order to prevail on the issue of service connection for any particular disability, there must generally be a showing of the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The Veteran asserts that he currently has a psychiatric disability that had its onset in and is related to his active service. Specifically, he contends that during service he failed to lock his locker and as a result, he was fined twenty dollars and the whole platoon was punished. Later, several members of his platoon beat him up in the shower. For the reasons set forth below, the Board concludes that service connection for major depressive disorder is warranted. Notably, the Veteran reported having or having had "depression or excessive worry" and "nervous trouble" in an October 1968 report of medical history provided in conjunction with his pre-induction examination. The Veteran's pre-induction examination reflects a normal psychiatric evaluation. A September 1969 military personnel record reflects that the Veteran was found to have failed to secure and lock-up his weapon, which resulted in a fine. The record reflects that the Veteran has a current diagnosis of a depressive disorder dating back to November 1973, as reflected in private treatment records from that time. The Veteran was also diagnosed with bipolar disorder, as shown in October 2006 private treatment records, and PTSD, as shown in March 1994 private treatment records and a Disability Benefits Questionnaire (DBQ) submitted by the Veteran in December 2015. The Veteran was seen in psychiatric consultation in May 1980 for depression and nerves. He stated that he had been nervous most of his life and that his nervous tendencies had been exacerbated around age 22-23. He indicated that he experienced increased anxiety during his service in Vietnam, but that he did not seek psychiatric attention while in the military. Also of record is a July 1981 letter from another private treating physician noting the Veteran had been under his care for a depressive illness since 1975. At that time the Veteran gave a past history of always having been nervous and that he complained of this when serving in the Marine Corps four years previously. He stated that he continued to feel unwell after leaving service and sought treatment for depression and received electroshock treatments sometime in 1974. In further support of his claim, the Veteran's submitted a January 1970 letter written by the Veteran to his parents, in which he described significant homesickness and depression. The Veteran's brother submitted a statement in December 2002 asserting that the Veteran had a nervous condition prior to service and that he should not have been accepted for active service. He also indicated that the family doctor had written a letter to the draft board regarding the Veteran's nervous condition. Also of record is a December 2002 letter from the Veteran's ex-wife in which she stated that the Veteran had been depressed in service and that he had changed after service. In a January 2005 statement, a fellow service member reported that he and the Veteran had both been drafted in the Marine Corps and served the entire time together. He indicated that the Veteran was always worried about things, specifically his parents and his then-girlfriend and that in fact, the Veteran would worry so much that he would have recurrent bouts of depression. In December 2011, the Veteran underwent a VA examination to determine the etiology of his psychiatric condition. The Veteran reported that the first time he experienced a bout of depression was during boot camp. He again reported that he failed an inspection and as a result was fined twenty dollars and the whole platoon was punished. He stated that several members of his platoon beat him up in the shower, but he did not seek medical treatment at that time. After this event he began having headaches, trouble sleeping, and became depressed. The Veteran stated that another incident that caused him to have problems with depression was when an overseas flight lost an engine and had to dump fuel and make an emergency landing. He also had a bout of depression while serving aboard a ship off the coast of Vietnam when he found the body of a fellow Marine that had been crushed between two large tanks. The Veteran reported that he was seen at Camp Schwab in Okinawa on two occasions for mental health services, but there is nothing in the Veteran's service records to support this. The Veteran reported that the next time he was seen for mental health treatment was several years after service. The examiner referred to an August 1974 clinical record that showed the Veteran had been admitted to the hospital on several occasions because of episodes of depression, which were secondary to problems in his marriage. The clinical impression was dysthymic disorder. Based on a review of all the evidence in the claims folder, as well as information obtained from the Veteran, the examiner concluded that the Veteran's acquired psychiatric disorder was less likely as not caused by or a result of his military service. The December 2015 DBQ completed by the Veteran's treating licensed clinical social worker, reflects a diagnosis of dysthymia, PTSD, and panic disorder. She also concluded that although she cannot determine what percentage of this experience can be attributed to his service, she believed that it is very much a factor. She also attributed symptoms of flashbacks, nightmares, depression, and anxiety to PTSD. The Veteran underwent an additional VA examination in February 2016. The Veteran indicated that he performed the duties of a supply sergeant and denied combat exposure. When asked about the origins of the depression in the military, the Veteran, again, reported that he failed to lock his locker, which resulted in punishment for everyone, and as a result, he was beaten by three other Marines during boot camp. The examiner noted that he was hospitalized for psychiatric reasons on three different occasions between 1970 and 1973. He reported having substantial suicidal ideation and being on the verge of attempting suicide one year after service. The Veteran reported that he continually receives mental health treatment since discharge from service. The examiner concluded that the Veteran has symptoms of PTSD and meets the requisite criteria for this diagnosis. The examiner also provided diagnosis of major depressive disorder and alcohol use disorder, which is in remission per his report. The examiner indicated that these problems coalesce to exacerbate his symptoms of anxiety and depression and that the symptoms are overlapping and intermingled, and this makes it difficult to differentiate the symptoms to each diagnosis. The examiner opined that the Veteran's PTSD, major depressive disorder, and alcohol use disorder (self-reported) are as least as likely as not (50/50 probability) caused by or is a result of his military service, per the distressing experiences he indicated being exposed to, while in the military. During his August 2016 hearing, the Veteran reiterated that his depression began immediately after the incident in which he was beaten by fellow marines. He reported that he saw a military doctor and that he was told it was homesickness. He also reported speaking with a chaplain about his symptoms. He explained that he did not seek treatment within a year after service, but that he sought treatment two years after service and received shock treatment. He also reported that he attempted suicide numerous times. The Veteran further reported that he continued to experience depression, flashbacks, difficulty sleeping, as well as other symptoms after the incident in service, and that following service he drank alcohol heavily to cope with his symptoms. The Board additionally notes that the Veteran's testimony is consistent with his prior testimonies given in September 2005 and May 2011 Board hearings. Here, in the February 2014 JMR, the parties agreed that the December 2011 VA opinion was inadequate, as the examiner failed to provide a sufficient rationale for his negative nexus opinion. Therefore, the only probative opinions of record are the February 2016 VA opinion and the December 2015 private opinion. Here, each mental health professional provided detailed summaries of the Veteran's medical history and psychiatric symptomology and provided an opinion based on an accurate characterization of the evidence of record, and thus, are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the December 2015 opinion did not provide a conclusion with certainty reflected in percentage, the health care professional's statement that she believed that the Veteran's service was "very much" a factor reflects that she believed it was at least as likely as not that the current depressive disorder was related to the in-service activity described by the Veteran in his competent and credible testimony. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, even a medical opinion such as this one that is flawed because stated uncertainly has some probative weight. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). Furthermore, these medical opinions are consistent with the record, to specifically include the Veteran's report of longstanding psychiatric type symptoms since the incident in service, as well as complaints of depression and anxiety throughout the Veteran's post-service treatment records dating back to the 1970s. Although the Veteran indicated that he did not seek treatment within a year of service, the Veteran has credibly reported that he consumed alcohol to cope with his symptoms following service. The Veteran is also competent to report observable symptomatology and the onset of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Veteran's statements regarding his depression symptoms, to include his responses to events that triggered his symptoms, are competent evidence which the Board finds to be credible, as his testimonies and assertions have remained consistent with regard to the onset and continuation of his symptomology since service. Furthermore, the letter the Veteran sent to his parents during service and the statements from his ex-wife and fellow service member indicate that the Veteran experienced symptoms of depression during and after service. Given the benefit of the doubt doctrine and as the opinions of record are sufficient to support a finding of service connection, entitlement to service connection for major depressive disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for a major depressive disorder although the issue on appeal was previously characterized as entitlement to service connection for a psychiatric disorder, to include depression, PTSD, and bipolar disorder, and there are additional diagnosis of panic disorder and dysthymia of record. Although the Federal Circuit has stated, "[w]e recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability," Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), that is not the situation here with regard to the Veteran's major depressive disorder, PTSD, bipolar disorder, panic disorder, and dysthymia. See id. (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Here, the December 2015 DBQ indicated that the Veteran's symptoms of anxiety, depression, panic attacks, flashbacks, and nightmares are symptoms of PTSD. However, most recently, the February 2016 VA examiner considered the Veteran's symptoms and stated that the Veteran's symptoms from major depressive disorder, PTSD, and alcohol use (self-reported) overlap and are intermingled, thus, making it difficult to differentiate the symptoms to each diagnosis. In addition, there is no evidence to distinguish between all of the symptoms of PTSD, major depressive disorder, bipolar disorder, panic disorder, and dysthymia. Thus, the evidence above does not reflect that the Veteran's psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and in applying the benefit of the doubt doctrine, they must therefore be attributed to his service-connected major depressive disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, the Board need not separately address the issues of entitlement to service connection for PTSD, bipolar disorder, panic disorder, and dysthymia. ORDER Entitlement to service connection for major depressive disorder is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs