Citation Nr: 20072867 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 13-10 384 DATE: November 12, 2020 ORDER Service connection for an acquired psychiatric disorder, diagnosed as generalized anxiety disorder with co-existing depression, is granted. FINDINGS OF FACT 1. A psychiatric disability was not “noted” at service entrance. 2. The Veteran’s psychiatric disorder was incurred in service, symptoms of which have persisted since service separation. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as generalized anxiety disorder with co-existing depression, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to July 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2018 decision, the Board denied the Veteran’s claims of entitlement to service connection for gastroesophageal reflux disease (GERD); and for major depression, recurrent, with anxiety features. In September 2019, the Court of Appeals for Veterans Claims (CAVC or Court) vacated and remanded the Board’s decision to the extent that it denied the Veteran’s claims of entitlement to service connection for GERD; and for major depression, recurrent, with anxiety features. In the Joint Motion for Remand (JMR), the parties agreed to remand this matter for further development and re-adjudication consistent with the instructions set forth in the September 2019 CAVC Decision. The issues of entitlement to service connection for GERD and service connection for a psychiatric disorder were remanded by the Board in July 2020. Thereafter, in a September 2020 rating decision, the RO granted service connection for GERD; as such, this issue is no longer before the Board for consideration. Service Connection Laws and Regulations 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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”). 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); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). 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. Psychiatric Disorder The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111 ; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). Upon review of the evidence of record, the Board finds that a psychiatric disorder was not “noted” at service entrance. An October 1968 Report of Medical Examination showed no indication of a psychiatric disability at the time of service entrance. The record does not demonstrate that a psychiatric disability was noted upon entry into service and does not demonstrate by clear and unmistakable (obvious or manifest) evidence that a psychiatric disorder existed before service entrance. The Board acknowledges that the Veteran submitted a March 2020 psychiatric evaluation from Dr. Davidson. At that time, Dr. Davidson opined that it was “at least as likely as not” that the Veteran’s psychiatric disorder pre-existed service entrance. The Board finds, however, that the doctor’s standard (i.e., “at least as likely as not”) does not meet the evidentiary burden VA is required to rebut the presumption of soundness. Accordingly, the Board finds that the presumption of soundness attached at service entrance has not been rebutted in this case. See 38 C.F.R. § 3.304 (b); see also Odiorne v. Principi, 3 Vet. App. 456, 457 (1992), Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s psychiatric disorder was incurred in service, symptoms of which have persisted since service separation. Service treatment records show that in a June 1970 Report of Medical History, completed by the Veteran at service separation, he specifically checked “YES” as to having frequent trouble sleeping, nervous trouble, and depression or excessive worry. In a May 1970 psychiatric evaluation, the Veteran was also found to have attempted suicide by ingesting approximately 20 prescription drug pills. The psychiatric evaluation noted that the Veteran’s suicide gesture was considered “manipulative in nature,” however, no rationale was provided for this determination. The Veteran was diagnosed with passive, dependent personality with depressive reaction. The Veteran has submitted a March 2020 private psychological evaluation from Dr. Davidson, a neurophysiologist. Dr. Davidson reviewed the medical and lay evidence of record. Further, Dr. Davidson conducted a full and detailed psychiatric evaluation of the Veteran and provided a diagnosis, pursuant to the DSM 5, of generalized anxiety disorder with co-existing depression. Although Dr. Davidson opined that the Veteran’s psychiatric disorder pre-existed service entrance, it was also noted that the Veteran had symptoms of depression and anxiety in service, as evidenced by his suicide attempt. Moreover, it was indicated that the Veteran began using drugs and alcohol in service and following service discharge to “cope with symptoms.” According to Dr. Davidson, this substance abuse history was consistent with what many individuals use to control or mask symptoms. Other evidence of record includes a June 2010 statement from a private physician which stated that the Veteran had been treated for anxiety at her clinic from 1988 to the present. The Veteran’s spouse has also provided a statement noting that the Veteran had suffered from depression and anxiety since approximately 1980. The Veteran had two VA examinations for his psychiatric disorder. At the first exam in October 2010, he was diagnosed with major depression, recurrent, with anxiety features. The examiner opined that it would be mere speculation to opine as to whether or not the Veteran’s current diagnosis was the same or was the result of anxiety/nervousness and depression shown during active duty. She went on to explain that the Veteran had several factors contributing to his depression and anxiety starting in childhood, including his parents’ divorce, his own divorce, a history of legal problems (DUI and shoplifting), and a history of substance abuse. The examiner further opined that it would be speculation to state that the current anxiety and depression symptoms represent a new condition, the same condition, or is a progression from the previous anxiety and depression the Veteran suffered in service. At the second VA examination in April 2017, the Veteran was diagnosed with an unspecified depressive disorder with anxious distress. The examiner opined that it was less likely than not that the Veteran’s current depressive disorder was incurred in or caused by his military service. The examiner noted that the Veteran reported that he did not seek treatment for his mental health following separation from service until 1990, and that he only sought treatment at that time because he was “just getting anxiety.” The examiner explained that the Veteran attributed his anxiety to “just life I guess” and reported that he did not know what was causing his current anxiety. Finally, the examiner opined that he would have to resort to mere speculation to opine if either the Veteran’s anxiety or depression began prior to service because there are no available records of mental health treatment prior to his enlistment. As discussed in the September 2019 JMR, the April 2017 examiner’s opinion failed to fully consider the lay statements of record, to include statements from the Veteran’s spouse. Accordingly, these opinions lack probative value. Pursuant to the Board’s most recent remand, a new VA medical opinion was obtained in September 2020. The examiner opined that the Veteran’s psychiatric disorder was not related to service. In support of this opinion, the examiner noted that there was a lack of consistent mental health records and objective evidence to support a nexus between the Veteran’s current mental health complaints and military service. The Board finds that the September 2020 VA medical opinion lacks probative value. In this regard, although there are no specific treatment records pertaining to the Veteran’s psychiatric disorder soon after service separation, the examiner did not address the findings noted by Dr. Davidson. Specifically, the indication that the Veteran used drugs and alcohol to mask his symptoms. Moreover, during Dr. Davidson’s examination, the Veteran acknowledged that he did not seek treatment for his mental health issues until 1989, but used drugs and alcohol “to make himself feel better.” As such, it appears that, although no specific mental health treatment was sought prior to 1989, the Veteran continued to have symptoms following service separation. The Veteran has credibly reported that his symptoms have been present since service. See e. g., March 2013 VA Form 9. The Board finds that the Veteran is competent to provide evidence about what he experienced in service and following service separation. Layno, 6 Vet. App. 465. In sum, the Board finds that a psychiatric disorder did not clearly and unmistakably exist before service. Service treatment records confirm that the Veteran had various psychiatric symptoms in service, to include trouble sleeping, nervousness, depression, and a documented suicide attempt. The evidence also shows that, following service, the Veteran used drugs and alcohol to cope with his psychiatric symptoms, which may provide some explanation for the lack of treatment records immediately following service separation. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s psychiatric disorder first manifested in service and was incurred in service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a psychiatric disorder, diagnosed as generalized anxiety disorder with co-existing depression, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.