Citation Nr: 1817752	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  14-38 917A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for depressive disorder not otherwise specified (NOS).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Counsel

INTRODUCTION

The Veteran served on active duty from July 1967 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin.  In that decision, the RO denied service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

The Veteran testified before the undersigned Veterans Law Judge at a November 2017 videoconference hearing at the RO.  A transcript of the hearing is associated with his file.

As a final preliminary matter, the issues of entitlement to service connection for a psychiatric disability, a gastrointestinal disability, a back disability, residuals of a head trauma, left-sided facial nerve damage, transverse myelitis, a neurological disability other than transverse myelitis, a bladder disability, and weakness of the legs and ankles other than that associated with transverse myelitis were discussed during the November 2017 hearing.  The Board points out, however, that only the issue of entitlement to service connection for a psychiatric disability has been certified to the Board for appellate review.  Petitions to reopen claims of service connection for a gastrointestinal disability, a back disability, transverse myelitis, and a bladder disability were most recently denied in a July 2008 Board decision.  Claims of service connection for left-sided facial nerve damage, a neurological disability other than transverse myelitis, and a disability manifested by weakness of the legs and ankles other than right leg weakness associated with transverse myelitis were most recently denied in a January 2011 Board decision.  In a July 2013 decision, the Board granted service connection for a left eyebrow scar (claimed as residuals of head trauma).  Moreover, the RO most recently denied a claim of service connection for head trauma in a February 2017 rating decision.

In light of the above, the Veteran has raised the issues of whether new and material evidence has been received to reopen claims of service connection for a gastrointestinal disability, a back disability, residuals of a head trauma other than a left eyebrow scar, left-sided facial nerve damage, transverse myelitis, a neurological disability other than transverse myelitis, a bladder disability, and weakness of the legs and ankles other than that associated with transverse myelitis, by way of his November 2017 hearing testimony, but the Board does not have jurisdiction over these issues.  Therefore, these issues must be referred to the agency of original jurisdiction (AOJ) for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms.  See 38 C.F.R. § 19.9 (b) (2017).  See also 38 C.F.R. § 3.150 (a) (2017) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. §§ 3.160 and 20.201 (2017) (requiring that claims and notices of disagreement be filed on standard forms).


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's current depressive disorder NOS had its onset in service.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for depressive disorder NOS are met.  38 U.S.C. §§ 1110, 1111, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(b) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 
As the Board is granting the claim of service connection for depressive disorder NOS, the claim is substantiated and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

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 current disability and an in-service precipitating disease, injury or event.  38 U.S.C. § 1110; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

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).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, a March 2012 VA mental health psychiatric evaluation and management note reveals that the Veteran has been diagnosed as having depressive disorder NOS.  Thus, a current psychiatric disability has been demonstrated.

There is also evidence of impaired mood and behavior in service and evidence of continuous symptoms in the years since service which indicates that the current depressive disorder NOS was incurred in service.

As an initial matter, the Board notes that the Veteran has reported various psychiatric stressors that occurred prior service, including abuse as a child.  He has also reported a history of alcohol use prior to service.  Regardless, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b).

Although the Veteran is certainly competent to report a history of psychiatric stressors and alcohol use prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient in this case to meet the clear and unmistakable error standard to warrant rebuttal of the presumption of soundness.  Miller v. West, 11 Vet. App. 345 (1998).  There is no other evidence of any pre-existing psychiatric disability or alcohol abuse prior to service and the Veteran's 1966 entrance examination was normal.  Therefore, the Board finds that the evidence is not clear and unmistakable that any psychiatric disability or alcohol abuse pre-existed service and was not aggravated in service, and the Veteran is presumed sound at service entrance.  38 U.S.C. § 1111.

The Veteran contends that his current psychiatric disability is related, at least in part, to a personal assault that occurred in service when he was attacked and hit in the head by several assailants.  In this regard, his service treatment records include a January 1971 record of treatment for a left eyebrow laceration and a forehead abrasion due to a fight.  He has reported on various occasions that his alcohol use increased in service and that he has experienced difficulty handling stress, irritability, anger, agitation, and a short temper in the years since service.  Moreover, post-service medical records and lay statements indicate that mood and behavioral symptoms have continued in the years since service.  

The Veteran is competent to report continuous mood and behavioral symptoms in the years since service and there is nothing to explicitly contradict these reports.  In light of this evidence, the Board finds that the reports of continuous mood and behavioral symptoms in the years since service are credible.

In sum, the evidence reflects that the Veteran experienced a physical assault and mood and behavioral symptoms in service and that there have been continuous symptoms in the years since service.  He has also been diagnosed as having current depressive disorder NOS.  The evidence is thus at least evenly balanced as to whether the evidence indicates that the current depressive disorder NOS had its onset in service.  There is no medical opinion contrary to this conclusion with respect to the diagnosed depressive disorder NOS.  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 the currently diagnosed depressive disorder NOS is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").
The Board points out that the benefit granted herein is service connection for depressive disorder NOS.  There is evidence that the Veteran has also been diagnosed as having PTSD during the claim period.  Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran's psychiatric disabilities, a separate decision as to entitlement to service connection for PTSD is unnecessary.  See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability).  Thus, in applying the benefit of the doubt doctrine, all of the Veteran's psychiatric symptoms must be attributed to his now service-connected depressive disorder NOS.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability).


ORDER

Entitlement to service connection for depressive disorder NOS is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs