Citation Nr: 1643974 Decision Date: 11/18/16 Archive Date: 12/01/16 DOCKET NO. 97-18 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served in the Army Reserves and had active duty from September 1980 to December 1980, and from December 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the San Juan, the Commonwealth of Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO), which found that new and material evidence had not been received and denied the Veteran's request to reopen the previously denied claim for service connection. In an April 2004 decision, the Board found that new and material evidence had been received and granted reopening the claim. Following several remands, the Board denied the Veteran's claim in a November 2012 decision. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (Court). In an August 2013 Order, the Court granted a Joint Motion for Remand by the Veteran and VA General Counsel and vacated and remanded the Board's decision. In February 2015, the Board remanded this case and instructed the RO to send the Veteran a 3.304(f)(5) compliant notice for her PTSD claim. In addition, the RO was instructed to obtain the names and addresses of all medical care providers who treated the Veteran for psychiatric complaints since June 2012, and to obtain an addendum medical opinion to the October 2011 VA examination report. In February 2015, the Veteran submitted a list of all medical and treatment facilities that treated her. The Board also notes that the requested 3.304(f)(5) compliant notice was sent to the Veteran in April 2015. In addition, a medical opinion was obtained in November 2015. Accordingly, after reviewing the actions of the Agency of Original Jurisdiction, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran's attorney filed a Freedom of Information Act (FOIA) request in a September 2016 letter, and requested copies of all records added to the claims file since January 8, 2015. In October 2016, the FOIA request was fulfilled by the VA Record Management Center. The representative requested a period of 90 days following the receipt of the requested documents in which to review the materials. In light of the disposition of the case below, the Board finds that granting the representative's request would delay the appeal at the expense of the Veteran. His request for the Board to delay adjudication of the claim is denied. FINDING OF FACT The Veteran's diagnosed PTSD and MDD have been shown to be related to traumatic experiences in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD and PTSD, are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, as well as certain assistance duties. However, given the disposition of the appeal below, discussion of VA's compliance with those duties are not necessary, and any deficiencies in such notice or assistance are harmless. In the decision below, the Board grants the claim of service connection for psychiatric disability. To the extent there are any notice defects as to the initial rating and effective date elements when effectuating the award, the Board trusts the RO will ensure they are rectified. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); 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. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD. Specifically, the Veteran asserts that her acquired psychiatric disorder is due to traumatic events during active duty service including being assaulted and being isolated while she was stationed in Germany. 1. Factual Background The Veteran served in the Army Reserves with periods of active duty between August 1980 to June 1991, including being stationed in Germany during her active duty service from December 1990 to June 1991. The Veteran's service treatment records (STRs) contain several examination reports, including examinations conducted in July 1980, January 1982, July 1983, January 1989, and March 1991. The examination reports all noted normal psychiatric evaluations and the Veteran denied depression or excessive worry or nervous trouble of any sort. In addition, a November 1989 STR noted the Veteran was alert and had normal neurological findings including spatial orientation, memory, attention span, judgement, mood, and thoughts. The physician found no hallucinations or delusions. A March 1990 STR noted no psychiatric conditions including depression, anxiety, suicidal ideation, nervousness, insomnia, nightmares, hallucinations or delusions. In a February 1991 emergency room STR, the Veteran complained of cramping, abdominal pain, diarrhea and nausea; and the physician noted the Veteran was "very emotionally distraught." The Veteran was diagnosed with gastroenteritis. Memoranda dated September, October, November and December 1991 show the Veteran was charged with unexcused absences from scheduled unit training assemblies. Lastly, in March 1992, the Veteran was relieved from her Reserve duties due to unsatisfactory participation. Post-service medical records show a diagnosis for major depression in December 1993. The Veteran reported depression since January 1991 with depressive symptoms since her return from active duty in Germany. A January 1994 VA medical certificate shows the Veteran complained of depression due to a "bad time" while stationed in Germany. She further reported being anxious and depressed since service. In addition, the physician found the Veteran to be well oriented, and not delusional. The Veteran was not experiencing hallucinations, or exhibiting suicidal or homicidal ideations. The Veteran reported having nightmares and sadness without interest in daily living activities. An April 1994 VA medical certificate notes the Veteran complained of depression and reported symptoms of sadness, insomnia, irritability, tearfulness, worthlessness, and isolation. She was diagnosed with major depression. A June 1994 service treatment record notes the Veteran began feeling sad, unhappy and nervous when she was activated and assigned to a unit in Germany. While in Germany the Veteran felt nobody knew about her existence, her "emotional condition worsened" and she began having crying spells. The physician found the Veteran was depressed with no symptoms of hallucinations or suicidal ideations. An August 1995 VA medical record notes the Veteran reported feeling tearful and sad. In addition, the Veteran stated that while she was stationed in Germany she felt rejected and abused. The Veteran underwent a VA examination in December 1997. The examiner provided a diagnosis of severe depression. The Veteran reported that her depression began while she was stationed in Germany. She further reported that she was the only Reservist from her unit who was activated, and while she was stationed in Germany she was transferred to different bases. In addition, she stated that she saw a psychiatrist once while in Germany. The examiner stated that the Veteran cried during most of the interview. The Veteran's answers were found to be relevant, coherent and logical. She was not found to be delusional or hallucinating. The Veteran reported a lack of energy to get involved or to do things, and had nightmares about what happened to her while in Germany. Her affect was fairly adequate and mood was depressed. She was not found to have homicidal ideations, but did verbalize suicidal ideations. She was oriented in all spheres, her memory and intellectual functioning were preserved, judgment was fair, and her insight was found to be very poor. The examiner diagnosed the Veteran with dysthymia and assigned a Global Assessment of Functioning (GAF) score of 50 to 55. An opinion as to service connection was not provided. A July 1999 psychiatric evaluation provided a diagnosis of major depression. Symptoms included sadness, crying spells, social withdrawal, feelings of failure, and no longer being able to function the way she used to. The physician noted the Veteran was sad and she reported having days where she was very angry. The Veteran also reported nightmares of a man in fatigues coming to attack her. She further reported feeling tired all the time. No delusions or hallucinations were reported and the physician found the Veteran's train of thought normal and logical. The Veteran was found to be oriented to all spheres with no deficits in memory or control of impulses. Judgement and insight were noted to be adequate. A November 1999 VA medical record notes a diagnosis of recurrent major depressive disorder and the Veteran reported having nightmares related to her experiences in service. In a September 2001 certification, the Veteran's physician opined that "the root cause of [the Veteran's] illness during these past years is directly related to the overwhelming stress encountered during her tour of active duty in the military back in 1991." The Veteran underwent another VA examination in July 2006. The Veteran reported that her depressed mood and crying bouts began in 1990 when she was the lone member of her Reserve unit called to active duty. The examiner noted the Veteran was neatly groomed with spontaneous speech and cooperative attitude. Her affect was constricted with a depressed mood. The examiner found the Veteran oriented to all spheres, with an unremarkable thought process and content. The examiner did not find delusions, sleep impairment, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, episodes of violence or suicidal or homicidal ideations. Her memory was found to be normal. The Veteran was also noted to be tearful when talking about her military experience. The examiner diagnosed the Veteran with depressive disorder and assigned a GAF score of 65. The examiner opined that the Veteran's depressive disorder was "not caused by or a result of the active duty during the period from 12/06/90 to 06/17/91." The examiner based this opinion on a lack of evidence of psychiatric complaints, findings or treatment during service. The examiner further based this opinion on the fact the Veteran sought psychiatric care two years after service and that the Veteran denied symptoms on a March 1991 report of medical history. An April 2007 VA psychiatric progress note shows a diagnosis of depression not otherwise specified with ruled out dysthymic disorder. A GAF score of 60 was assigned. During an August 2007 VA clinic assessment, the Veteran was noted to have crying spells. The physician noted fair grooming and hygiene, cooperative attitude, no psychomotor agitation, and coherent and fluent speech with spontaneous and adequate voice volume. Her mood and affect were sad, and thought process coherent, goal directed and relevant. The Veteran did not exhibit suicidal or homicidal ideations and her insight and judgement were found to be fair. A GAF score of 60 was assigned. VA Medical records dated March 2008, July 2008 and February 2009 note diagnosis for dysthymic disorder with ruled out major depressive disorder. GAF scores of 60 were assigned. An April 2009 VA medical record notes a diagnosis of major depressive disorder and recurrent episodes of dysthymic disorder with an assigned GAF score of 65. In February 2010, the Veteran reported being physically assaulted while she was stationed in Germany. Specifically, the Veteran reported she was attacked by another female soldier, falsely accused of robbery, and was a victim of a "blanket party" in which she was beaten. A May 2010 VA psychologist note shows the Veteran reported that after she arrived in Germany she was welcomed with a "blanket party." She further reported that she did not know who was involved, but that she was hospitalized for her injuries. She further reported that while in Germany she always felt rejected and abused. The Veteran again reported being assaulted while stationed in Germany in a June 2011 psychiatric progress note. The Veteran reported having nightmares and flashbacks in which she relived the "blanket party" in which she was beaten by fellow soldiers. The Veteran was assessed to have a positive PTSD screen. An October 2011 VA examiner diagnosed the Veteran with recurrent major depressive disorder and ruled out PTSD. The Veteran reported symptoms including depressed mood, anxiety, hopelessness, helplessness, worthlessness, poor impulse control, crying spells and irritability. The examiner noted the Veteran was casually dressed and able to maintain minimum personal hygiene. The examiner found unremarkable psychomotor activity, and spontaneous, rapid, hesitant clear and coherent speech. In addition, the Veteran's attitude was noted as cooperative, affect appropriate, and mood anxious and depressed. The Veteran was oriented to person, time and place. Memory was noted as normal. The Veteran was not found to have sleep impairment, hallucinations, delusions, inappropriate behavior, obsessive ritualistic behavior, panic attacks, or homicidal thoughts. The Veteran was found to have suicidal ideations. In addition, the Veteran was found to have a sad mood, insomnia, and feelings of worthlessness and hopelessness. A GAF score of 56 was assigned. The examiner found the Veteran had signs and symptoms compatible with major depressive disorder which had worsened due to obesity and severe low back pain. The examiner opined that the Veteran's major depressive disorder was "not caused or related to military service." In making this determination, the examiner found no evidence of psychiatric complaints, findings or treatment during service. The examiner found the psychiatric disorder was a result of the Veteran's "own willful misconduct," namely, one shoplifting incident during service. A September 2013 VA medical record from the Veteran's psychiatrist states the Veteran was traumatized by events she experienced while stationed in Germany. The Veteran was diagnosed with posttraumatic stress disorder and chronic major depressive disorder. VA medical records dated November 2013, and February and May 2014 show a DSM-IV diagnosis for chronic PTSD and recurrent MDD without psychotic features. GAF scores of 55-60 were assigned in those records. In addition, VA medical records dated July 2014, October 2014, and February and June 2015 show a DSM-V diagnosis for chronic PTSD and recurrent MDD without psychotic features. GAF scores of 60 were assigned in those records. A November 2014 private medical examination diagnosed the Veteran with PTSD with dissociative symptoms and delayed expression. The physician opined that "it is an incontrovertible fact that [the Veteran's] mental illness began during her active-duty service." The physician noted the Veteran's reports of being physically assaulted while in service and stated that difficulties in remembering exact details of the circumstances support rather than refute a diagnosis for PTSD. The physician found the Veteran's psychiatric disorder began after she was assaulted and beaten by fellow soldiers while stationed in Germany, and her condition worsened due to her social and professional isolation due to her being the only Reservist from her unit deployed and having no permanent assigned duty. In addition, the physician found there was no evidence of any psychiatric illness, medical illness, substance use disorder, neurological disease, or other behaviors, actions or symptoms suggestive of emotional trauma prior to her deployment to Germany. The physician found that a February 1991 emergency room STR for gastroenteritis, in which the treating physician noted the Veteran's state as "extremely emotionally distraught," was a significant manifestation of her disorder. The physician further found a "severe behavioral decline" subsequent to the traumatic event including a shoplifting incident and failure to report to scheduled trainings. The physician noted that the Veteran presented with the following symptoms: avoidance; nightmares; flashbacks; escalated startle response; hypervigilance; negativistic thinking; deterioration in cognitive function; being withdrawn and isolated; and experiencing thought disorganization. In addition, the physician noted the Veteran had intermittent passive suicidal ideations without plan or intent. In consideration of the medical evidence, the physician found that the Veteran fully met DSM-V criteria for PTSD and that the Veteran was completely disabled due to her disorder. In a November 2014 Brief, the Veteran asserted that she began exhibiting symptoms of her PTSD following her attack in 1991, including avoiding her duties and a shoplifting charge. In a May 2015 statement, the Veteran asserted that while she was stationed in Germany a female soldier threw her belongings off her bunk and began hitting her. The Veteran further asserted that in the middle of the night a blanket was thrown on top of her and she was beaten by fellow soldiers. She further stated she suffered injuries to her head and was treated with a cold can of soda and snow. Thereafter, she was reportedly moved to another room. After that incident, the Veteran asserted sleep impairment out of fear of being assaulted. An addendum to the October 2011 VA medical opinion was obtained in November 2015. The examiner was asked to opine whether there was evidence the Veteran had behavioral changes following the claimed in-service assaults indicating they occurred. The examiner opined that there was no evidence of any behavioral changes following the claimed assaults which would indicate the assaults actually occurred. The examiner determined that the first evidence of depression was a shoplifting incident in Germany that led to the Veteran's imprisonment. In addition, the examiner opined that it was not "at least as likely as not (i.e. probability of approximately 50 percent) that any diagnosed acquired psychiatric disorder is related to the Veteran's in-service assaults." The examiner found the first diagnosis for depression occurred in 1993, and that the diagnosis was not related or associated to service. The examiner based this determination on a lack of evidence of psychiatric complaints, findings, or treatment during service; or within one year after service. In addition, the examiner found that the first psychiatric care sought occurred three years after service, and that the Veteran failed to establish a relationship between the neuropsychiatric condition and service. 2. Legal Analysis Initially, the Board notes that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is the type of claim that cannot be limited only to a particular diagnosis, but must be considered a claim for any mental disability that may be reasonably encompassed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). After a review of the claims file, the Board finds that the weight of the evidence demonstrates the Veteran has a diagnosis for chronic PTSD and recurrent MDD that are related to trauma she experienced during active duty service. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2015). The Veteran's VA medical records clearly show a current diagnosis for PTSD and MDD. These include medical records dated between November 2013 and June 2015 showing the Veteran met DSM-IV and DSM-V criteria for chronic PTSD and recurrent MDD without psychotic features. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2014); Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that interpretation of section 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Thus, the Veteran clearly has a diagnosis of PTSD and MDD, and the remaining question is whether these disorders are related to service. The Veteran asserts that her acquired psychiatric disorder is the result of a physical assault and isolation while stationed in Germany. Specifically, the Veteran asserts that she was the victim of a "blanket party" in which a blanket was thrown over her while she was sleeping and was beaten by fellow soldiers. She further asserts that, as the only Reservist from her unit that was called-up for active duty, she felt isolated both socially and professionally. In addition, she asserts that she felt abused while she was stationed in Germany. The Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See Patton v. West, 12 Vet. App. 272 (1999). Moreover, the Veteran is competent to describe her in-service experiences. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also acknowledges that the relevant regulation stipulates that if PTSD is based on an in-service personal assault, evidence from sources other than a Veteran's service records may corroborate his or her account of the stressor incident. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be used to corroborate the stressor. 38 C.F.R. § 3.304 (f)(5) (2015). Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5) (2015). The Board notes that, prior to the Veteran's active duty from December 1990 to June 1991, her STRs do not show a history of complaints or treatment for any psychological disorder. Additionally, prior this period of active duty the Veteran's military records do not note any behavioral or performance problems. However, following her deployment to Germany, a February 1991 emergency room STR for gastroenteritis noted the Veteran was "very emotionally distraught." In addition, in September, October, November and December 1991, the Veteran was charged with unexcused absences from scheduled unit training assemblies. Lastly, in March 1992, the Veteran was relieved from her Reserve duties due to unsatisfactory participation. Accordingly, the Board finds that the Veteran exhibited behavioral changes meeting the criteria of 38 C.F.R. § 3.304 (f)(5). Moreover, the Board finds the November 2014 private medical evaluation and opinion the most probative evidence of record. The physician conducted a thorough examination of the Veteran and a thorough review of the record. Based on a review of the evidence of record, the physician opined that it "is an incontrovertible fact that [the Veteran's] mental illness began during her active-duty service." In making this determination, the physician cited the behavioral changes noted above, including a shoplifting charge, and found that they clearly were manifestations of the Veteran's acquired psychological disorder. The examiner has training on which he relied in forming his opinion and he provided a persuasive rationale for it. Conversely, the Board finds both the July 2006 and October 2011 VA examiner's opinions (including the November 2015 addendum) of less probative value. The July 2006 examiner opined that the Veteran's depressive disorder was "not caused by or a result of the active duty during the period from 12/06/90 to 06/17/91." The October 2011 examiner opined that the Veteran's major depressive disorder was "not caused or related to military service." However, the rationales for both opinions centered on a lack of evidence showing psychiatric complaints, findings or treatment during service. Both examiners failed to consider the Veteran's lay statements as to onset of her psychiatric disorder, and both cited to a lack of in-service complaints, findings or treatment for a psychiatric disorder. It is well-settled that the lack of in-service complaints or treatment does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In addition, the October 2011 examiner did not consider behavioral changes following the reported in-service incident as relevant evidence the incident occurred. As noted above, the issue in this case is the type that falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. 38 C.F.R. § 3.304 (f)(5) (2015). Therefore, the Board finds the July 2006 and October 2011 VA examinations of less probative value. Accordingly, after a review of the evidence of record, the Board finds that the evidence weighs in favor of granting service connection for PTSD, and the claim is granted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder, is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs