Citation Nr: 1805197 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-05 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for major depressive disorder (MDD) and anxiety disorder. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for coronary artery disease (CAD) and hypertension (HTN), to include as secondary to service-connected MDD and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active service from March 1979 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the case to the RO in April 2017 for further development and adjudicative action. The case has been returned to the Board for further appellate review. At that time, although the Veteran initially characterized his psychiatric claim as one for service connection for PTSD and appealed only that issue, medical evidence of record also reflects other diagnosed psychiatric disorders, as such the Board recharacterized the claim, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In connection, the Board has bifurcated the psychiatric claim, given the different dispositions of the claims, as the requirements for service connection PTSD differ from other psychiatric disorders. The Board has also recharacterized the claim for service connection for CAD under the facts specific to this case and the medical evidence of record also reflects another diagnosed heart disorder. See id. In December 2017 and January 2018, the Veteran submitted an additional VA Form 9 and statement requesting a video conference hearing before the Board. In Cook v. McDonald, 27 Vet. App. 471 (2016), the Court held that under 38 U.S.C. § 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following the Court's remand of the same claim. The Court did not address the question of whether the Veteran has the right to a second Board hearing in other circumstances. In this case, the Veteran was afforded a Board hearing in March 2017, and the case was not before or remanded by the Court. The Board thus appears to have discretion to afford the Veteran a second hearing at this time but will not do so because it is granting one of the claims being decided and remanding other claims for additional development. Another hearing at this time would delay this development and thereby prejudice the Veteran. See also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). The Veteran may request an additional hearing upon completion of the development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issue of service connection for MDD and anxiety disorder is addressed in the decision below. The issue of entitlement to CAD and HTN is addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's major depressive and anxiety disorders are related to service. 2. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of PTSD related to an in-service stressor. CONCLUSIONS OF LAW 1 With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for MDD and anxiety disorders are met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. PTSD was not incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Given the favorable dispositions of the claim for MDD and anxiety disorder, the discussion in this section applies to the PTSD claim only. In April 2017, the Board remanded the Veteran's claim for additional development, to obtain VA examinations and opinions, which was completed in October 2017, thus there has been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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). In written statements and testimony, the Veteran described a "horrific traumatic event" involving being discharged from active duty several months after enlisting due to a disqualifying, pre-existing right hand and wrist disability. He asserts that the experience of his military discharge caused "a chain of different reality probabilities." He related that he joined the military because he "saw an opportunity in learning a trade . . . that would advance[d] me into a greater feeling of self-worth among other possibilities" and that he had planned to have a career in the Army. He explained that his unit was preparing for a field day with other military departments and he was unable to perform a crab crawl. Consequently, he was ordered to report to sick call the next day. He reported that after seeing a neurologist, he was placed on permanent profile for his hands and processing began to discharge him from active duty. The Veteran stated that as a result of being discharged from active duty, he became insecure and angry, could not find a job to provide for his family, "started having problems" with his wife and had many failed relationships, and had frequent job changes due to anger issues. He reported that he had been diagnosed with PTSD and completed a PTSD treatment program and that his PTSD, depression, and anxiety disorders were all due to being discharged from service quickly when a military doctor realized that his right hand and wrist disability was disqualifying. The Veteran also testified that the stress he experienced related to his military discharge resulted in his current coronary artery disease disability. The Veteran's service treatment records document that in February 1979 the Veteran disclosed his history of having a wrist operation at age 12 to an Army recruiter. On entrance examination the next day, the Veteran's upper extremities and psychiatric function were reported as normal and a scar was noted on the Veteran's right wrist. The examiner also initialed a January 1973 operative report on the date of the entrance examination, indicating he had "reviewed and considered [the operative report] in examinee's physical profile." The January 1973 report indicates that in July 1972, the Veteran had severed the ulnar nerve and five tendons in his right wrist and primary repair was performed at that time. Since that time, he experienced motor paralysis of the right hand. As a result, he underwent a lysis of neuroma and anastomosis of the right ulnar nerve in the wrist. The post-operative diagnosis was "ulnar paralysis, motor, of the right hand result of neuroma scar formation." A June 1979 service treatment record references the January 1973 record from the civilian doctor and indicates that the Veteran "wishes evalu[uation] for possible discharge from this letter and wants information about discharge for bronchitis also." Two days later another military physician reviewed the operative report and examined the Veteran. The impression was ulnar paralysis right hand secondary to transection and subsequent neuroma formation (remote). The physician found the Veteran unfit for retention and recommended separation from service. A record of "Entrance Physical Standards Board (EPSBD) Proceedings" from the same day indicated that the Veteran's "medical condition/physical defect" existed prior to service and had not been aggravated by service. The physician explained that the Veteran "should have been found unfit for enlistment at the time of entry examination" and "was unfit for enlistment" under Army guidelines. Pending the Veteran's separation, he was placed on physical profile with limitations including no push-ups or pull-ups and "no assignment requiring dexterity and coordination of both hands." The findings and recommendation were approved. On separation examination in July 1979, the Veteran's psychiatric function, lungs, and chest, heart, and vascular system were reported as normal on clinical evaluation; his blood pressure was recorded as 108/70; and a chest x-ray was reported as negative. However, noted abnormalities or defects included his right wrist scar and right ulnar paralysis. On the date of his separation from military service four days later, the Veteran affirmed that there had been no change in his medical condition since his separation examination. Post-service private treatment records dated in April 1996 document the Veteran's report of a history of hypertension that he had monitored on his own for about two years. He described a family history negative for hypertensive disease, but positive for coronary artery disease that began in his father when he was in his fifties; he passed away in his sixties following a myocardial infarction. The Veteran indicated that three years earlier he decided to stop smoking and when he did that, he started eating more and gaining weight. The physician commented that it "is with the weight gain [that] his hypertension seems to be coming out." Subsequent records reflect ongoing treatment for hypertensive heart disease with blood pressure often not well-controlled and additional weight gain. The Veteran also reported that his mother had coronary artery disease and four siblings had type II diabetes mellitus. The report of an October 2000 private sleep study indicated the Veteran had a "severe [obstructive sleep apnea] pattern." In April 2001, the Veteran underwent an exercise stress test at a private cardiology center. The stress test was "clinically and electrocardiographically positive for ischemia." Cardiac catheterization with angiography was performed four days later. The cardiologist indicated coronary artery disease was present and recommended bypass surgery with continued risk factor modification. The Veteran was transferred to a regional medical center the same day and underwent two-vessel coronary artery bypass grafting. The discharge diagnosis was coronary artery disease with unstable angina; hypertension; diabetes. Records from his in-patient hospitalization note a "significant history of very difficult to control blood pressure" and a family history "significant for coronary artery disease and diabetes mellitus." Private treatment records dated in 2004 and 2005 reflect the Veteran's complaints of stress at work and consideration of a career change. Records in April and May 2005 document a diagnosis of anxiety disorder and a prescription for Lexapro. In March 2007, the Veteran was involved in a motor vehicle accident. In April 2007, he complained of depression and insomnia. He was started on Wellbutrin, but reported it did not help. Later in April 2007, he was prescribed Diazepam (Valium), then Lexapro for diagnosed depression. In May 2007, he reported feeling much better on Lexapro and that he was sleeping well. Beginning in April 2007, the Veteran's private physician, S. Speeg, M.D., (and other physicians) wrote several letters on the Veteran's behalf in support of various claims for employee medical leave, insurance claims, student loan discharge, and Social Security disability benefits. In June 2007, Dr. Speeg indicated that the Veteran was under his care for diabetes, coronary artery disease status post coronary artery bypass grafts and stent placements, and generalized anxiety disorder and depression, among other medical conditions. Dr. Speeg reported that after a March 2007 motor vehicle accident, the Veteran's "anxiety and stress have increased" and "since the accident, his overall medical condition has worsened." In a March 2009 letter, Dr. Speeg reported that the Veteran had chronic intractable angina, which was projected to worsen. He added that he had told the Veteran his disease would be progressive, "and this has worsened his depression." In February 2008, the Veteran described increasing anxiety and depression related to "family stresses." The impression included depression and generalized anxiety disorder; Cymbalta was prescribed. In May 2008, his physician prescribed Xanax for anxiety and insomnia. An August 2009 treatment record from Lane Regional Medical Center documented the Veteran's report of a three-year history of depression. The earliest VA treatment record associated in the claims file is a June 2010 primary care follow-up note with a physician who was new to the Veteran. Past medical history included "depressive disorder since 2001, with coronary artery disease." At the conclusion of an October 2010 VA mental health visit, the impression was major depressive disorder; possibly impulse control disorder; possible psychotic component. During a February 2013 VA mental health visit, the Veteran discussed his "thoughts of 'having PTSD'" and "how the military ha[d] contributed to his multiple marriages and his inability to keep gainful employment." He described "times of crying episodes and becoming irritable with no particular triggers." The clinician noted the Veteran's "main concern today [is] the denial of his PTSD claim." An April 2014 VA treatment record reflects the Veteran was mildly depressed with occasional tearing. He became more restless and distressed when discussing certain topics. He described his dismissal from the military as traumatic. He also referred to various life events following that time that he believes are related to the depression triggered by dismissal from the military. A May 2017 VA treatment record reflects the Veteran contacted the VA medical center by phone expressing concern over the lack of diagnosis of PTSD. The author of the treatment record indicated that, on review of Veteran's records, providers have diagnosed him with Anxiety Disorder, NOS, Generalized Anxiety Disorder, and Depressive Disorder, due to lack of a past traumatic event. The Veteran believes that his being discharged from the military based on medical problems that were disclosed prior to joining was traumatic and led to the anxiety and depression. He stated that he planned on a career in the military and being unable to meet these goals were traumatic for him. He requested further evaluation. A subsequent May 2017 VA treatment record notes the Veteran was seen for an initial evaluation. He reported he was discharged from the military because he was deemed unfit to serve because of right ulnar nerve damage as he was not able to perform certain activities and had been feeling depressed since then and had a sense of rejection. He had been feeling depressed and anxious for several years. He had suicidal thoughts in the past and he was hospitalized with the suicidal thoughts in November 2011. The psychiatrist concluded that the Veteran did not meet diagnostic criteria for a diagnosis of PTSD, but met the criteria for a diagnosis of major depressive disorder and anxiety disorder, unspecified. He opined his depression and anxiety disorders seem to be related to his feelings of rejection when he was discharged from the military service. An October 2017 VA examination report reflects the Veteran reported a history of depression dating post-discharge in 1979 and has been relatively consistent since that time. His anxiety began around 1979 when "everything fell apart." Symptoms of anxiety have been relatively consistent since that time. The Veteran identified his discharge from the military and resulting financial hardship and dissolution of his marriage, and loss of visitation with his son as a traumatic event that continues to be a problem for him. The discharge from the military was related to a pre-existing wrist injury that occurred at the age of 12. The VA examiner stated it is less likely than not that the Veteran's psychiatric disorders was incurred in or caused by service. The psychologist explained the Veteran does not meet DSM-IV criteria. DSM-IV requires "exposure to a traumatic event in which the individual experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others." The Veteran's recall of onset and root of depression and anxiety has been inconsistent over time. A summary of treatment indicated diagnosis of anxiety in 2005 associated with work stress. Depression was documented in 2007 post motor vehicle accident. In 2008, increased anxiety and depression were associated with family stressors. The Veteran's VA treatment records noted a history of depressive disorder since 2001. In the current evaluation, the Veteran described onset of depression and anxiety in 1979 due to military discharge. In 2012, the veteran's physician, Dr. Speeg, noted no anxiety or depression. While the Veteran currently has depression and anxiety, it is less likely than not that the Veteran's depressive disorder and anxiety disorder had its onset during service or is medically related to service. The Veteran has consistently alleged depression and anxiety since service, to include in the VA treatment and examination reports. The Veteran reported that it worsened throughout the years as other life events occurred. The Veteran is competent to report continuous symptoms since service, see Washington v. Nicholson, 21 Vet. App. 191, 195 (2007), and his statements have been credible and consistent with the evidence of record. See 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Here, the May 2017 VA psychiatrist concluded that the Veteran's depression and anxiety disorders "seem to be related to his feelings of rejection when he was discharged from the military service." Although medical opinions that use terminology equivalent to "may or may not" are generally an insufficient basis for an award of service connection, see Winsett v. West, 11 Vet. App. 420, 424 (1998), reading the opinion as a whole and in the context of the evidence of record, it supports that it is at least as likely as not that the MDD and anxiety disorder was caused by the feelings of rejections due to the medical discharge. 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). In this case, the positive VA nexus opinion and negative VA nexus opinion are each flawed, as the October 2017 VA examiner did not address the Veteran's continuity of symptoms and worsening following the above discussed post-service life events. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). They are, therefore, of approximately the same probative weight. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for MDD and anxiety disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. PTSD There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304 (f). As noted above, in order for the Veteran to be entitled to service connection for PTSD, the medical evidence must show a diagnosis of PTSD linked to an in-service stressor. VA and private treatment records show that the Veteran does not have a current diagnosis of PTSD. The VA treatment records and October 2017 VA examination report reflects diagnosis of major depressive and anxiety disorders and the clinicians determined that the Veteran did not have a diagnosis of PTSD. The October 2017 VA examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV, as well as DSM-5, and because the Veteran had other mental disorders. In light of the foregoing, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of PTSD that is related to his confirmed in-service stressor of being discharged from service due to his in-service wrist injury. Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has had PTSD at any time during the pendency of the claim or prior thereto. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). As medical evidence establishing a diagnosis of PTSD is required to support a claim for service connection for this disability, the preponderance of the evidence is against an essential element of the claim. The benefit of the doubt doctrine is therefore not for application and entitlement to service connection for PTSD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for MDD and anxiety disorder is granted. Entitlement to service connection for PTSD is denied. REMAND As noted above, the Board finds that the Veteran's service connection claim for CAD encompasses a claim for hypertension based on the facts of this case. Clemons, 23 Vet. App. at 1. Here, the October 2017 VA examiner indicated that the Veteran's CAD was caused by HTN, hyperlipidemia, and his family history of CAD, rather than from his claimed psychiatric condition, however, the examiner did not address the etiology of the Veteran's hypertension. In addition, given that the Board has granted service connection for MDD and anxiety disorder, the Board finds an opinion addressing whether these now-service connected disorders caused or aggravated his hypertension is warranted. In connection, the Board notes that there is evidence showing a possible association between the Veteran's psychiatric disorders and his hypertension, and VA's own regulatory documents have indicated a possible association between psychiatric disorders and hypertensive vascular disease for prisoners of war (POWs). See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). See also VA National Center for PTSD, Kay Jankowski, PTSD and Physical Health ("A number of studies have found an association between PTSD and poor cardiovascular health"). See 38 C.F.R. § 3.159(c)(4)(i)(C) (examination or opinion warranted where evidence indicates disability or symptoms may be associated with another service-connected disability). Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Request an opinion from an appropriate specialist VA physician as to the etiology of the Veteran's hypertension (A full VA examination should not be scheduled unless it is deemed necessary by the evaluator or otherwise required by the evidence.) The physician should review the electronic records contained in VBMS and the Virtual VA system, including a copy of this remand. After reviewing the relevant evidence of record, the reviewing or examining physician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the current hypertension: a) had its onset during service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service; or, if not, b) whether it is as least as likely as not (50 percent probability or more) that any current heart disability is either (a) caused or (b) aggravated, by the Veteran's service-connected major depressive and anxiety disorders. The examiner should specifically comment on the VA documents cited above indicating an association between psychiatric disorders and heart disease. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 2. After the above development has been completed, readjudicate the claim for service connection for CAD and HTN. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs