Citation Nr: 1752659 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Chisholm, Chisholm & Kilpatrick, Attorneys at Law ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to service connection for PTSD. In July 2015, the Board denied the Veteran's claim for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the July 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). A subsequent November 2016 Court Order affirmed the part of the Board's decision that denied service connection for PTSD, but vacated the Board's decision with regards to service connection for depression. Therefore, the issue on appeal, in accordance with the Court's Order is rephrased to only include entitlement to service connection for depression. The Board notes that the Veteran submitted additional records that were not yet adjudicated by the Agency of Original Jurisdiction (AOJ); however, in an August 2017 correspondence, through his representative, the Veteran waived regional office consideration of the evidence submitted as well as any potential VCAA notice errors. See August 2017 correspondence. The case has now returned to the Board for further appellate review. FINDING OF FACT The competent and credible evidence of record indicate that the Veteran's currently diagnosed major depressive disorder is related to his active duty. CONCLUSION OF LAW The criteria to establish service connection for depression have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309(a), which are not applicable here, are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis As noted above, the Court vacated the Board's decision with regards to the issue of entitlement to service connection for depression. Specifically, the Court held that the Board failed to adequately explain its determination that VA's duty to assist did not require a remand to afford the appellant a VA medical opinion to determine whether his depression is related to service. The Court additionally found that the Board did not adequately explain its findings that there was "no support in the medical evidence" for the Veteran's assertion that his service experiences caused him to abuse cocaine, which in turn, contributed to his depression symptoms. The Veteran asserts that his depression was a result of being subjected to racism and unjust harassment by his superiors in service, which contributed to his substance abuse. The Board initially notes that the Veteran has a current diagnosis of depression NOS. See e.g., January 2013 psychiatric evaluation and July 2017 psychological evaluation. Turning to the evidence, the Veteran's service treatment records (STRs) do not reflect any complaints, symptoms, or treatments for a mental disorder. Nevertheless, in April 1966, the Veteran was recommended for a discharge from the military based on performance issues. It was noted that he "was always getting drunk at night and coming back to the area making all kinds of noise," and his superior officer stated that he had "a defective attitude and the inability to expend effort constructively." The Veteran April 1966 separation examination noted "no psychiatric disorder." Post-service medical records dated 1992 reflect that the Veteran participated in a VA Substance Abuse Treatment Center (SATC) outpatient program related to cocaine dependency. The Veteran reported cocaine use since 1973, which became more frequent and problematic in 1985. He also noted prior treatment in 1972 for alcohol abuse. In March 1992, a diagnostic summary indicated that there was no history of significant psychiatric dysfunction and that "cognitive and psychological functioning is within normal limits." The mental health professional noted that the Veteran "might be experiencing a mild depression," which was "most likely in reaction to his substance abuse and other psychosocial stressors." It was further noted that the Veteran had experienced a significant change in his life several years prior when he lost a well-paying job and was not able to find comparable employment. The mental health professional concluded that that resulting financial problems, relocation, and loss of self-esteem and self-worth appeared to be directly related to his increased use of cocaine, which "appears to be his primary method of escaping from his difficulties." In March 1994, the Veteran again received treatment for substance abuse. He reported that his alcohol use began at age 19, with daily use until he was 28. He further indicated that he had abstained from cocaine use for two years, but had used cocaine again in February 1994, and was drinking several times a month, following his loss of employment, in November 1993. The mental health professional rendered diagnoses of cocaine dependence, alcohol dependence, and cannabis abuse in partial remission. The Veteran denied a history of significant depression or anxiety but reported "some recent depressed mood related to unemployment and other stressors." The mental health professional found that the Veteran did not meet the criteria for a depressive disorder, but recommended that the continued treatment and monitoring. Though, additional treatment notes of a social assessment at the same time indicated that the Veteran "discussed some of his anger at the military and its [treatment] of him." Private treatment records dated November 2005 indicate that the Veteran again received treatment after an increase in substance abuse. A psychiatry evaluation contains a diagnostic impression of cocaine dependence and alcohol abuse and a separate record from the same time shows a diagnosis of depression, not otherwise specified (NOS). During a May 2008 psychiatric evaluation at the VA SATC program, the Veteran reported that he "drank alcohol from 1962 to 1973." He further stated that he believed that he was using cocaine, because he was depressed and indicated that he had been prescribed medication for depression in the past. The mental health professional noted that his depression symptoms "appear to be more of a dysphoria associated with cocaine use." In July 2008, the Veteran was treated in the emergency room with symptoms of depression that he indicated had been present for over one year, including depressed mood, hopelessness, worthlessness, guilt, and shame. He indicated that he experienced "frequent disappointments in his life and an inability to achieve goals," as well as being a burden on his family and had become more depressed after he was a victim of an armed robbery. VA SATC progress notes dated September 2008 indicate that the Veteran reported to his physician that he "was medically separated from active service" and noted that "It was because of my behavior. It was mental. I thought these junior officers from West Point abused their power. But I loved the military." In October 2010, the Veteran submitted a claim for service connection for PTSD indicating that he turned to alcohol in-service, when he was stationed in Germany with an infantry division. The Veteran explained that he was attempting to relieve mental pain and fear associated with the prospect that he might be sent to fight in Vietnam. He also asserted that he was "a target of harassment in service which resulted in being a target for a bad discharge" and noted that the "process hurt [him] dearly" and that "all of this contributed to drug abuse." He lastly noted, that his treatment program "allowed [him] to realize that the hurt [was] still there." In January 2013, the Veteran was seen by a VA psychiatrist for "flashbacks." The Veteran reported that he had been sober from cocaine and alcohol since 2009, but complained of episodes during which he felt "down" and of having vivid disturbing dreams and flashbacks "related to being in the military and how difficult it was." He indicated that he was not exposed to combat situations, but did witness an instructor take a bullet when he inadvertently walked onto the rifle range during practice. However, he noted that his dreams were not about this incident. Lastly he reported avoiding people, places, and things associated with substance abuse. The examiner rendered a diagnosis of depression NOS, cocaine dependence in remission, and ruled out PTSD. In March 2013, a VA psychologist continued a diagnosis of depression NOS. The Veteran reported that he "dealt with racism in the army, wrote a letter about it to the Pentagon, and described being regularly accosted by superior officers for writing this letter." The psychologist noted the Veteran's substance abuse problems while in the military and that he was still bitter from his being discharged and blocked from reenlisting. The psychologist concluded that the Veteran did not report any event during the military that would meet the stressor criterion for PTSD. The Board notes that the Veteran has a current diagnosis of depression, and he competently and credibly reported that between his fear of being deployed to Vietnam and his poor treatment at the hands of his commanding officer, he became depressed, began to act out against his superiors, and began to use alcohol and later other substances to cope with his symptoms. The Board further notes that the Veteran is competent to describe these incidents and what led him to abuse alcohol and cocaine. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (holding that the Veteran is competent to testify on matters of which he has personal knowledge, such as describing his in-service experiences and his reactions to them). Moreover, in assessing the credibility of the Veteran's statements, the Board may consider factors such as possible bias or conflicting or inconsistent statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); See also Caluza v. Brown, 7 Vet. App, 498, 511 (1995). Here, the Board finds that the Veteran's statements do not conflict with, and are not inconsistent with, the other evidence of record. In fact, his service personnel records confirm that he was discharged from the military for unsuitability, and that he was written up for excessive drinking, an inability to follow orders, and problems maintaining hygiene. Therefore, the Veteran's reports that his depressive symptoms began during service and continued after discharge are both competent and credible, and the only element needed to establish a claim for service connection is a nexus opinion relating these experiences to the Veteran's current diagnosis of depression. In this regard, in July 2017, the Veteran underwent a psychological evaluation, in which the clinical psychologist rendered a diagnosis of major depressive disorder, chronic, with psychotic features, under both DSM-IV and DSM-V. The psychologist indicated that there were numerous and broad prodromal symptoms of depression present during service, which were the result of being the ongoing target of harassment and racial discrimination at the hands of his superior, 1st Lieutenant and other fellow soldiers. The psychologist noted that the Veteran's STRs document behavioral issues and indicated that the "empirical literature shows [these behavioral issues] to be consistent with the prodromal symptoms of depression." Specifically, the psychologist referenced April 1966 STRs which noted the Veteran's multiple attitudinal issues, to include an "indifferent attitude," a "defective attitude," and an "attitude [that] was always getting him into trouble." The psychologist quoted additional medical literature, which concludes that "depressogenic" or "Dysfunctional Attitudes" accurately "predicted... prospective [future] incidence of depressive disorders." Furthermore, the psychologist explained that the Veteran's April 1966 STRs, "relate to the generally increased somatization often seen with depression," and referenced the Veteran's loss of interest, sleep disturbance, fatigue, decreased energy, and the notation that he went to sick call every time he got the chance as examples of early onset of depression. The psychologist further explained that the Veteran's substance abuse after being subjected to racism and unjust harassment was a form of "self-medication" of his frustrations and his depressive symptoms, which ultimately led to his general discharge (under honorable conditions) for unsuitability. Moreover, the psychologist indicated that upon mental examination of the Veteran, it was apparent that he tended to minimize or under-report his psychiatric symptoms, so the greatest risk in evaluation him was that one will under-assess the magnitude and severity of his psychiatric condition, which was the case at time when the Veteran has been evaluated in the past. The psychologist noted that in many cases the mental health professionals who provide substance abuse treatments, more often than not, tend to attribute any psychiatric disorder symptoms to the substance abuse and not vice versa. The psychologist further stated that although "grossly under assessed," the Veteran has been diagnosed with clinical depression in March 1994, November 2005, July 2008, January 2013, March 2013, April 2013, and September 2013. Lastly, it was indicated that the Veteran's extreme reaction to being harassed in service, represents prodromal signs of paranoia, as well, and, as such, it was the psychologist's "strong opinion" that it is at least as likely as not that the Veteran's current mental condition of Major Depressive Disorder, Recurrent, Severe, with Psychotic Features, "had marked prodromal representation, by way of both its mood features and its psychotic features, during the Veteran's period of active duty. The psychologist concluded that the Veteran's current auditory hallucinations continue to echo the harassing voices that he experienced from service, and current mental health symptoms were directly related to the above mentioned prodromal symptoms of depression, to include daily lack of energy, lack of interest, unremitted and unresolved irritability and frustration toward those who harassed him in service, night-time sleep disturbance, somatic preoccupation, and lack of motivation and performance. Based on the foregoing, the Board finds that this opinion is competent and adequate for VA purposes. The psychologist conducted a comprehensive review of the claims file, interviewed and examined the Veteran, and supported the conclusions reached with medical literature and competent and credible evidence on file. Notably, the Veteran has a current disability of major depressive disorder and a competent medical opinion that adequately links that current diagnosis to the Veteran's competent and credible reports of in-service events that at the very least contributed to his current mental disorder. Although there was competent evidence standing against a finding that the Veteran did not have a diagnosis of PTSD that was related to service, such is not the case with respect to the diagnosis of depression. Accordingly, the Board concludes that the evidence adequately supports a grant of service connection for depression. (Continued on next page.) ORDER Entitlement to service connection for depression is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs