Citation Nr: 1807754 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-00 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran had active military service from August 1975 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In January 2011, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. In June 2014, the Board remanded the matter for additional development. In September 2016, the Board issued a decision denying the service connection claims for an acquired psychiatric disorder and diabetes mellitus. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2017, the parties filed a Joint Motion for Remand partially vacating the Board's September 2016 decision to the extent that it denied the claim for service connection for acquired psychiatric disorder, and remanded the matter for readjudication in light of the Joint Motion for Remand. FINDING OF FACT An acquired psychiatric disorder, diagnosed as major depressive disorder, had its onset in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has a psychiatric disability that is related to his military service. He testified during his January 2011 DRO hearing that he became depressed after being monitored for his weight while in the military. The Veteran contends that the pressure he was under to lose weight, as well as the stress of his job duties working in nuclear power, led to depression. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes psychoses. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service treatment records are negative for complaints or treatments related to an acquired psychiatric disorder. In October 2001, the Veteran was admitted to a private hospital with a major depressive episode. A December 2001 VA treatment report noted a diagnosis of depression. An August 2003 VA history and physical reported a diagnosis of depression not otherwise specified (NOS). An August 2009 VA psychology note provided a diagnosis of major depressive disorder with psychotic features. A May 2010 VA mental health treatment note reported a long history of major depressive disorder with a recent exacerbation due to financial difficulties and severe psychosocial stressors. In a December 2010 correspondence, the Veteran's brother-in-law noted that he recalled the Veteran being on Amphetamine and Dextroamphetamine from January 1977 to December 1979. The Veteran underwent a VA examination in April 2011. The examiner noted that the Veteran had a history of three psychiatric hospital admissions with the first admission being in 2001. During service, the Veteran was seen in July 1976 on military sick call for a few visits for problems with weight control. The Veteran eventually received a medical discharge under honorable conditions for his weight. The examiner noted that the Veteran was not seen for depression or anxiety and did not receive any mental disorder diagnoses. The Veteran was subsequently treated from approximately 1977 to 1981 with four years of Dextroamphetamine by a family physician. The medication was given primarily for weight loss associated with obesity. From approximately 1981 to 1982, the Veteran again was treated by a family physician and given an unknown drug for weight loss associated with obesity. In 1993, he received a diagnosis of depression through a private physician in Arkansas. In December 2001, he began VA treatment for recurrent, severe major depressive disorder with psychotic features. The examiner provided a current diagnosis of recurrent, severe major depressive disorder with psychotic features. The examiner opined that the Veteran's major depressive disorder, recurrent, severe, with psychotic features, and panic disorder with agoraphobia were not caused by and were not the result of his military service. The examiner noted that the Veteran's difficulties with significant recurrent depression and panic disorder occurred many years after service. In a November 2017 statement, the Veteran reported that he experienced significant anxiety while in nuclear power school in service. He described the program as extremely intense and he had a significant level of anxiety throughout the entire process. He was counseled on his weight and it got to the point where he had to starve himself and write down everything he was eating. He was devastated and felt like he was a failure about his discharge as he was no longer able to make the military a career, and developed severe depression. He indicated that he experienced continuous symptoms since service. In November 2017, the Veteran was interviewed for psychological evaluation by private psychologist E.Z. She indicated that she reviewed the claims file, including service treatment records. She discussed the Veteran's weight counseling during service and discharge from service for being unfit for duty because of his weight. In addition, she discussed the Veteran's post-service psychiatric treatment, including hospitalization in 2001, VA treatment records and the April 2011 VA examination. A mental status examination was remarkable for suicidal ideation along with impairment in concentration, abstraction and reasoning abilities. During clinical interview, the Veteran reported that his in-service schooling was stressful and he gained weight because he was sitting in class all day. Over the next several months, he described struggling with his weight and recalled feeling frustrated. When discharge began to feel inevitable, the Veteran recalled feeling depressed and anxious. He expressed that he felt like a failure when he was discharged. Once at home, he sought treatment for depression and was put on amphetamines. He was told that the medication would make him feel better, think better, and lose weight. He indicated that he sought treatment with various medications from 1977 until 1981, and had frequent thoughts of suicide. He was again prescribed psychotropic medication in 1993 when he was diagnosed with colon cancer. He continued to periodically receive treatment until he was hospitalized in 2001. In 2009, his symptoms worsened, and he began to have panic attacks, auditory hallucinations, and intrusive suicidal ideation. In conclusion, Dr. Z. diagnosed major depressive disorder, recurrent episode, moderate. She determined that it is as least as likely as not that the Veteran's major depressive disorder was incurred in service. In so finding, the she observed that the Veteran reported a significant level of anxiety in service related to the pressure to perform academically and lose weight. She noted that one symptom of depression is weight gain. She also noted that the Veteran was distraught after his discharge and began to contemplate suicide for the first time. He sought treatment and was prescribed a stimulant in 1977. Since then, he experienced chronic depression punctuated by episodes of severe depression. She concluded that early, mild symptoms of depression were present in the final months of service. In sum, the record reflects current diagnosis of major depressive disorder. As to nexus to service, the Board notes that there are competing opinions of record, with the private psychologist finding that the disorder first manifest in service, and the VA examiner finding such a relationship less likely than not. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, although unlike the VA examiner, the private psychologist did not meet with the Veteran in person, she did review the claims file and discuss pertinent treatment records, performed a psychiatric evaluation and interview of the Veteran, and provided an opinion with rationale as to all conclusions reached. Though the opinion appears to be based in part upon the Veteran's own self-reported history, the Veteran is competent to report his symptoms and their history, and the Board finds no reason to doubt the credibility of the Veteran. For the foregoing reasons, the Board finds the medical opinions, at the very least, to be of relative equipoise regarding the onset of the Veteran's acquired psychiatric disorder. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that an acquired psychiatric disorder, diagnosed as major depressive disorder had its onset in service. Accordingly, service connection for major depressive disorder features is warranted. 38 C.F.R. § 3.303(d). ORDER Service connection for major depressive disorder is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs