Citation Nr: 18152483 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 08-17 055 DATE: November 23, 2018 ORDER Entitlement to service connection for any acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, is granted. FINDING OF FACT The record evidence shows that the Veteran’s current acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for any acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1969 to August 1972, including in the Republic of Vietnam from June 1970 to May 1971. This case has a long procedural history. Most recently, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development in January 2015. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ schedule the Veteran for appropriate examination concerning the contended etiological relationship between the current acquired psychiatric disability other than PTSD and active service. The requested examination occurred in August 2017 and addendum opinions were obtained in October 2017 and in September 2018. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the AOJ in August 2014. The Board finds that the evidence supports granting the Veteran’s claim of service connection for any acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified. The Veteran essentially contends that he incurred an acquired psychiatric disability (which he characterized alternatively as anxiety and as depression) while on active service and experienced continuous disability since his service separation. The record evidence supports the Veteran’s assertions regarding an etiological link between his current acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, and active service. The Board notes initially that a review of the Veteran’s available service treatment records shows no complaints of or treatment for any acquired psychiatric disability during active service. The Board also notes initially that the absence of contemporaneous records 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"). The post-service evidence also supports granting the Veteran’s claim of service connection for any acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified. Consistent with the Veteran’s lay assertions, the record evidence shows that there is an etiological link between his current acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, and active service. The Board notes here that, in a September 2012 remand, it found a November 2011 VA examiner’s opinion concerning the nature and etiology of the Veteran’s any acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, to be inadequate. See Board remand dated September 7, 2012, at pp. 9. The Board also notes here that both parties to a July 2014 Joint Motion for Remand argued that an October 2012 VA opinion was inadequate. The Board is bound by the Court’s Order granting the July 2014 Joint Motion for Remand. Accordingly, neither the November 2011 nor the October 2012 opinions by VA examiners were reviewed or relied upon in adjudicating the Veteran’s currently appealed claim. The Veteran’s post-service VA treatment records document ongoing complaints of and treatment for multiple acquired psychiatric disabilities, variously diagnosed as anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified. On VA mental disorders Disability Benefits Questionnaire (DBQ) in August 2017, the Veteran’s complaints included sleep disturbances due to nightmares related to his active service experiences, night sweats, irritability, hypervigilance, social isolation, feelings of depression, and persistent feelings of anxiety. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran had been married 46 years to his wife and had 2 adult sons (1 of which had been killed 9 years earlier). He “reported having good family support” and an “okay” relationship with his wife. The VA examiner stated, “Overall, this Veteran reported significant depression symptoms with anxiety.” The Veteran also reported weekly use of alcohol. Mental status examination of the Veteran showed cognitive functioning within normal limits “with short-term memory impairment,” full orientation, “concrete thought processes with thought content focused on responding to questions,” good eye contact, normal speech, a steady gait, appropriate grooming, no suicidal or homicidal ideation, and no auditory or visual hallucination. The diagnosis was major depressive disorder with anxious distress. In an October 2017 opinion, the VA examiner who conducted the August 2017 VA mental disorders DBQ opined that it was at least as likely as not that the Veteran’s current acquired psychiatric disability other than PTSD (which was diagnosed as major depressive disorder with anxious distress) is related to active service. The rationale for this opinion was based on a review of the Veteran’s service personnel records. In a September 2018 addendum opinion, the VA examiner who provided the October 2017 opinion and conducted the Veteran’s August 2017 VA mental disorders DBQ again opined that it was at least as likely as not that the Veteran’s current acquired psychiatric disability other than PTSD (which was diagnosed as major depressive disorder with anxious distress) is related to active service. The rationale for this opinion was that, although there were no mental health complaints during the Veteran’s active service, “this is not evidence that symptoms were not present.” The rationale also was based on a review of the Veteran’s service personnel records. (Continued on the next page)   (Continued on the next page)   The Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified (which he characterized alternatively as anxiety and as depression) during active service and experienced continuous post-service disability. The record evidence reasonably supports finding an etiological link between the Veteran’s current acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified (diagnosed most recently as major depressive disorder with anxious distress following VA examination in August 2017), and active service. The Board notes in this regard that, in the October 2018 Supplemental Statement of the Case, the AOJ concluded that an October 2012 VA negative medical nexus opinion was more probative than the October 2017 and September 2018 opinions and denied the Veteran’s currently appealed claim. This was error. As outlined above, both parties to the July 2014 Joint Motion for Remand argued successfully to the Court that the October 2012 VA opinion was not probative on the issue of whether the Veteran’s current acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified is related to active service. As also outlined above, the October 2012 opinion was not reviewed or relied upon in adjudicating the Veteran’s currently appealed claim. In other words, following a de novo review, the Board finds that the probative medical evidence of record – VA mental disorders DBQ in August 2017 and opinions dated in October 2017 and in September 2018 – clearly supports granting the Veteran’s claim. The Board notes in this regard that the October 2017 and September 2018 opinions also were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for any acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified, is granted. See also 38 C.F.R. § 3.102 (2017). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel