Citation Nr: 18106923 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 08-01 715 DATE: June 1, 2018 ORDER Service connection for an acquired psychiatric disorder, to include a depressive disorder, is granted. FINDINGS OF FACT 1. The Appellant is properly substituted as the claimant for the claim currently on appeal. 2. The Veteran had currently diagnosed psychiatric disorders, to include a depressive disorder. 3. An acquired psychiatric disorder was not noted upon service entrance and the Veteran experienced in-service psychiatric symptoms. 4. The evidence of record establishes that the Veteran’s diagnosed depressive disorder was causally or etiologically related to his military service on a direct basis. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include a depressive disorder, are met. 38 U.S.C. §§ 1110, 5107, 5121A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introduction The Veteran served on active duty in the U.S. Air Force from February 1971 to March 1972. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Board denied service connection for a psychiatric disorder, to include PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 order, the Court granted a Joint Motion for Remand (JMR) to vacate the Board’s denial of that claim. Pursuant to the JMR, the Board remanded the claim in March 2013. However, the Veteran died in December 2015. The Board remanded the claim in January 2016 for further development, but in February 2016, the Board dismissed the appeal due to the Veteran’s death. In March 2016, the Appellant, through her attorney, requested to be substituted for the Veteran for the purpose of continuing the claim pending at his death. In May 2017, VA granted substitution for the Veteran’s pending claim. See 38 U.S.C. § 5121A. The Board again remanded the claim in June 2017 to ensure compliance with its January 2016 remand directives, and to obtain a new VA medical opinion. As discussed in greater detail below, a VA medical opinion dated November 2017 has been associated with the claims file. In March 2016, the Appellant filed an application for Dependency and Indemnity (DIC) compensation, and death pension and accrued benefits. In July 2016, VA Pension Management Center denied the claims for death pension and DIC, and deferred the claim for accrued benefits. In an October 2016 Notice of Disagreement, the Appellant appealed the denial of entitlement to a death pension and DIC benefits. The Board did not take up these claims in June 2017 on the basis that they were still in the development stage before the RO and therefore not in appellate status. The RO issued a Statement of the Case in January 2018 denying entitlement to DIC, death pension, and service connection for cause of death. Although the record reflects that the Appellant submitted a substantive appeal for these issues in March 2018, the Board declines to consider the issue of service connection for cause of death at this time as the RO has not yet certified the appeal to the Board, indicating that the claim remains in the development stage. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Appellant as Substitute Claimant The record reflects that, in July 2006, the Veteran filed a service connection claim for PTSD. The RO denied the claim in the February 2007 rating decision and the Veteran timely perfected this appeal. Unfortunately, the Veteran died in December 2015, prior to the Board’s issuance of a decision in this matter. In March 2016, the RO received the Appellant’s motion to substitute the Veteran’s widow as the claimant in this case. In a May 2017 VA administrative decision, the RO granted the Appellant’s motion in accordance with the provisions of 38 U.S.C. § 5121A as her motion was timely filed and the record contains credible evidence that the Appellant was married to the Veteran at the time of his death. Accordingly, the Appellant is appropriately recognized as the substitute-claimant to continue adjudication of the Veteran’s claim. 38 U.S.C. § 5121A. 1. Entitlement to service connection for an acquired psychiatric disorder 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. § 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). 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). The claimed acquired psychiatric disorder is not a “chronic disease” listed under 38 C.F.R. § 3.309(a). He is not diagnosed with a psychosis. Therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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”). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). 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. § 5107 (b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Appellant asserts that the Veteran’s psychiatric disorders were related to his active duty service. See Letter from attorney dated April 9, 2018. Essentially, the Appellant asserts, as did the Veteran, that the Veteran witnessed service members and civilians fighting and stabbing each other in the Philippines during service, which lead to psychiatric disorders and substance abuse. See Affidavit of Veteran received January 21, 2015; Affidavit of Appellant received January 21, 2015; Notice of Disagreement dated July 30, 2007. Additionally, the Appellant asserts that the Veteran started drinking heavily after service as a means of self-medicating his psychiatric problems, and later attempted suicide as his mental health deteriorated. See Affidavit of Appellant at pgs. 1-2. The Veteran’s service treatment records (STRs) are negative for psychiatric disorders at enlistment in 1970. It was noted in August 1971 that the Veteran was “Very nervous inside” but did not wait to be seen by a doctor. STRs dated January to March 1972 reflect that the Veteran admitted to a “LCPC” program for suspected drug abuse where he admitted to using marijuana, codeine, LSD, mescaline, and heroin during service. A psychiatry note dated February 1972 diagnosed use of heroin and passive aggressive personality. A March 1972 drug screen was negative. The Veteran’s January 1972 separation examination includes the physician’s notation “No overt psychiatric disorder noted.” Notably, the Veteran’s service personnel records reflect that he was administratively discharged from service in March 1972 for drug abuse. Post-service medical treatment records reflect a number of psychiatric diagnoses as well as chronic substance abuse problems. For example, treatment records from a private rehabilitation center dated April to May 1998 show that the Veteran was admitted for two weeks of treatment for substance abuse. A private treatment record dated September 2003 notes a diagnosis of depression following a suicide attempt. In November 2003, the Veteran was taken to a private hospital after being found unresponsive at home. The discharge diagnoses were unspecified depressive disorder and alcohol abuse. Private treatment records dated August 2004 reflect diagnoses of anxiety and depression related to familial and marital discord, and alcohol-related depression. A March 2006 VA outpatient record reflects that the Veteran reported that he made two suicide attempts in 2005. VA treatment records dated June 2006 reflect diagnoses of an unspecified depressive disorder and alcohol dependence. VA records dated July 2006 reflect diagnoses of unspecified anxiety disorder and personality disorder. A September 2013 disability examination conducted as part of the Veteran’s application for Social Security Administration (SSA) disability benefits reflects diagnoses of an unspecified depressive disorder, GAD, possible alcohol dependence, and unspecified personality disorder. Associated with the claims file are three VA examination reports and an addendum medical opinion either requested by the RO or the Board in the development of the Veteran’s claim. The Board previously found VA examinations dated September 2006 and September 2013, as well as a March 2008 addendum opinion, inadequate. See Board decisions dated March 11, 2013, January 19, 2016, and June 21, 2017. On review, the Board finds the November 2017 examination report and opinion inadequate. First, the VA psychologist who authored the opinion incorporated significant language from the already deemed inadequate September 2006 and September 2013 VA examination reports into the November 2017 report so that it is difficult, if not impossible, to determine where the language of the prior reports end and the analysis of the November 2017 psychologist begins. Second, the VA psychologist concluded that the Veteran did not meet the criteria for a diagnosis of PTSD, then opined that something, it is not clear, is at least as likely as not related to the Veteran’s service, and offered no rationale for the opinion. See VA examination report dated November 6, 2017 at pgs. 3-5. Accordingly, the November 2017 VA medical opinion is inadequate and of no probative value. The Appellant submitted a medical report and opinion dated March 2018 by private psychologist C.M., Ph.D., HSSP (Health Service Provider of Psychology). The report reflects that C.M. reviewed the claims file, including the service and post-service medical records, and concluded that prior to his death, the Veteran had several mental health disorders, including depressive, anxiety, and alcohol use disorders. C.M. opined that the Veteran’s depressive and anxiety disorders were at least as likely as not related to service, that the disorders likely developed during service, with the development of increasingly worse symptomatology after his separation from service. See Medical Opinion of C.M. dated March 23, 2018 (March 2018 Medical Opinion) at pg. 6. C.M. pointed to post-service medical records and lay statements reflecting that the Veteran suffered from depressed mood, anxiety, and recurrent thoughts of death with intermittent suicidal ideation. Id. at pg. 7. Additionally, C.M. opined that the Veteran’s alcohol use disorder at least as likely as not developed secondary to the depressive and anxiety disorders. Id. at pgs. 1-2, 6. C.M. noted the likelihood that as the Veteran’s symptoms emerged during service, he began using alcohol and drugs to self- medicate and mitigate the increasing intensity of the symptoms. Id. at pg. 6. Finally, C.M. concluded that there is no evidence in the Veteran’s claims file that he ever met the full criteria for a diagnosis of PTSD, and that it was unlikely that the Veteran had a diagnosable personality disorder. Id. at pgs. 6-7. The March 2018 medical opinion is competent, credible and probative: It was authored by a licensed psychologist who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his mental disorders; the opinion was based on a review of the evidence of record as well as lay statements of the late Veteran and the Appellant. The opinion is consistent with the medical evidence of record, and contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Notably, there are no medical opinions or other competent medical evidence of record that weighs against the opinion of C.M. Accordingly, the Board finds the March 2018 medical opinion highly probative, competent and persuasive medical evidence in this case. In view of the foregoing, the Board concludes that the preponderance of the evidence supports the Appellant’s claim for service connection for an acquired psychiatric disorder, to include a depressive disorder. (Continued on the next page)   The grant of service connection on a direct basis pursuant to 38 C.F.R. § 3.303 renders moot all other theories of service connection. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel