Citation Nr: 20022465 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 16-14 472 DATE: March 31, 2020 ORDER Service connection for major depressive disorder with anxious distress is granted. FINDING OF FACT The evidence is at least in equipoise as to whether major depressive disorder with anxious distress had its onset during active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for major depressive disorder with anxious distress have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision. In April 2017 and November 2018, the Veteran failed to appear for hearings before RO personnel and the Board, respectively, for which she was notified. In November 2018 and August 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), to include depression, anxiety, panic attacks, and agoraphobia, due to military sexual trauma In October 2015, VA received the Veteran’s claim for service connection for PTSD, to include depression, anxiety, panic attacks, and agoraphobia, due to military sexual trauma. She described several incidents of personal assault that occurred at Ellsworth Air Force Base (AFB) in Rapid City, South Dakota. First, she reported a sergeant assaulted her in April 1982 in a truck when they were delivering something together on base. Next, in Summer 1983 while at a party on base housing, a sergeant cornered her and pinned her down on the floor, but she was able to get away. Then, in Fall 1983 or 1984, a major grabbed her from behind and tried to grope her, but she ran away and reported the incident to her commander. On a separate application for pension benefits, she asserted that PTSD, depression, and/or agoraphobia began in service or shortly after separation. She also reported that both of her marriages had ended in divorce; her first marriage was from September 1981 to November 1984, and her second marriage was from March 1985 to April 1997. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, 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). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). On enlistment examination in September 1981, the Veteran’s psychiatric function was reported as normal on clinical evaluation. In a report of medical history from the same day, she denied any history of depression or excessive worry, frequent trouble sleeping, nervous trouble of any sort, or loss of memory or amnesia. A November 1982 treatment note reflects the Veteran’s complaint of frequent headaches for the past eight months that were no worse now, but they occurred less frequently when she was off birth control pills as she was at present. She reported that she worries a lot about life, she was sleeping all the time on weekends, and she complained of feeling depressed, having insomnia, decreased appetite and libido, and crying. She denied suicidal thoughts. The assessment included headaches, [questionable if] secondary to depression. The examiner prescribed Sinequan [(Doxepin), which is a tricyclic anti-depressant], advised the Veteran to return to the clinic in two weeks, and noted she refused to go to the Mental Health Clinic. In December 1982, the Veteran learned she was eight to ten weeks pregnant. The next day, she was seen in the Mental Health Clinic (MHC) at the U.S. Air Force Hospital at Ellsworth AFB for an intake interview at the recommendation of her first sergeant. She presented with complaints of severe marital discord. The note reads, “See MHC files for more information.” Assessment was deferred. The plan included a follow-up visit in one week, administration of the MMPI (Minnesota Multiphasic Personality Inventory), and no medications. The next week, the Veteran returned to the MHC for follow-up with her spouse. The “situation [was] analyzed [and] course of action planned. See MHC files for more information.” The assessment was deferred. During a pre-natal visit the next day, the physician noted the Veteran was two months pregnant, having sleeping problems, and had possible depression. He noted she had been seen in the MHC for relaxation techniques and did not want to use tricyclics because of her pregnancy. As detailed, the Veteran remarried in March 1985. A March 1985 Family Planning Clinic note reflects the Veteran endorsed having migraine or other headaches and menstrual cramps. The examiner advised her to take Vitamin B6 for fatigue and to continue oral contraceptives for two months followed by foam and condoms for two months before attempting to become pregnant. A June 1985 telephone consultation record notes the Veteran was previously seen for not being able to stay awake, and the vitamins were not working. She reported she had just completed her oral contraceptives. She still complained of fatigue and insomnia. She denied suicidal ideation. The physician discussed depression with her, but she declined anti-depressants, stating she wanted to see if she felt better being off birth control pills after her leave. In late July 1985, the Veteran was notified of a positive pregnancy test. Her last known menstrual period was in late May. A May 1985 document reflects the Veteran waived her right to undergo a separation medical examination. A July 2007 VA primary care record reflects the Veteran presented to a Connecticut VA clinic to transfer medical care after moving from North Carolina. The physician reviewed the remote data from the North Carolina VA Healthcare System. Her past medical history included depression for 20-plus years treated with Celexa and Wellbutrin. Current medications included Venlafaxine (Effexor) and Alprazolam (Xanax). Her social history record noted she was divorced with a history of an abusive relationship. The assessment included generalized anxiety disorder, history of depression, questionable personality disorder. The physician ordered refills of her current medications and noted she refused to see VA mental health clinicians and planned to obtain care privately. Other evidence in the claims file shows the Veteran started working at a VA medical facility in June 2007, and subsequent VA treatment records reflect she did receive regular treatment from a private psychiatrist, P.K., M.D., and private psychologist, Dr. M.C., for depression with anxiety. A May 2011 discharge summary from a private hospital indicates the Veteran was referred by her outpatient providers for depression and anxiety. She presented a mixed state of bipolar disorder and was admitted for in-patient treatment for one month followed by approximately six weeks of outpatient treatment. During her in-patient treatment, she disclosed a history of childhood physical abuse; a history of self-injurious behavior by banging her head and hitting herself; and physical, sexual, and emotional abuse by her second husband. In December 2014, the Veteran presented as a new patient to a private medical facility with complaints of depression, explaining she had lost her job and insurance and had been unable to see her psychiatrist, Dr. P.K., who prescribes her medications, which had run out a while ago. The physician noted the Veteran’s risk factors included a history of depression, social isolation, and having been a victim of abuse or violence. The impression included depression. In January 2016, the Veteran was afforded a VA examination. She denied a history of childhood abuse or neglect; described incidents of in-service personal trauma consistent with the reports she submitted with her claim for service connection; and described her second husband as being “very abusive towards me and the kids, especially the older one because it wasn’t his biological child.” She reported being choked by, chased down the road with ax handles, thrown around, physically restrained, sexually abused, and threatened with guns and knives by her second husband. She also stated he had “threatened to institutionalize me all the time.” She reported seeking mental health treatment in 1995 for depression, noting that she did not realize she was depressed or involved in an abusive relationship until her physician pointed it out to her. Following a review of the claims file and examination, the diagnosis was major depressive disorder with anxious distress and stimulant use disorder, cocaine, in early remission. The examiner opined it was less likely than not that the Veteran’s current depression was related to her military service. The examiner detailed that the Veteran was seen” twice” [sic] by the mental health clinic during military service and no mental health diagnosis was rendered, and she did not seek mental health treatment again until 1995. Instead, the examiner concluded the Veteran’s depression was likely related to the physical, sexual, and emotional abuse she suffered at the hands of her second ex-husband. In November 2018, the Board remanded the appeal to obtain an addendum medical opinion because although the January 2016 VA examiner opined that the Veteran’s depression was most likely related to the abuse by her second husband, the examiner did not address the fact that the Veteran married that husband in March 1985 and had complained of fatigue and depressive symptoms in June 1985, both during active duty service. In June 2019, the January 2016 VA examiner reviewed the claims file again and opined that the Veteran’s depressive symptoms emerged in the context of her second marriage and her depressive disorder was therefore unrelated to her military service. The examiner noted the Veteran was seen twice in the military MHC in December 1982 in the context of marital difficulties in her first marriage. Then, she did not seek mental health services again until 1995 when she sought help for depressive symptoms related to her abusive relationship in her second marriage. “Thus, it is at least as likely as not that the episode of in-service [sic] was acute and not the early onset of a chronic disorder.” Because the June 2019 addendum opinion failed to comply with the November 2018 Remand directives, the Board remanded the appeal again in August 2019 to obtain another addendum medical opinion and to attempt to obtain “any in-service mental health clinic records pertaining to the Veteran, to include those that are referenced in the December 1982 service treatment notes.” In September 2019, the AOJ requested “inpatient clinical records for fatigue, insomnia, and depression” for calendar year 1982 and from June 1985 through December 1985 from the Mental Health Clinic. In an October 2019 response, the National Personnel Records Center (NPRC) advised the AOJ that a search was not possible without the name of the hospital and location where the Veteran was treated. After the AOJ requested “inpatient clinical records” for the month of April 1982 from Ellsworth AFB and mental health treatment records for the month of December 1982 from Ellsworth AFB, the NPRC responded that no records for calendar year 1982 were located. Thereafter, the AOJ scheduled a fee-basis examination for which the Veteran failed to appear in January 2020. The AOJ did not request an addendum medical opinion as directed by the August 2019 Remand. Considering the medical and lay evidence of record, the evidence is at least in equipoise as to whether an acquired psychiatric disorder, including major depressive disorder with anxious distress, had its onset during military service. Accordingly, all reasonable doubt is resolved in the Veteran’s favor, and service connection is warranted for major depressive disorder with anxious distress. The medical opinions of record do not reflect adequate consideration of the evidence of record, which shows that in November 1982 the Veteran reported an eight-month history of headaches, which the examining physician believed may be secondary to depression for which he prescribed Sinequan, a tricyclic anti-depressant. Then, within months of marrying her second husband in March 1985, a military physician offered anti-depressant medication again when the Veteran described symptoms of fatigue, insomnia, and depression. Although the notations by the military MHC note that no diagnosis was rendered, the evidence clearly reflects that symptoms of depression were manifested in service and physicians twice prescribed, or offered to prescribe, anti-depressant medication. Moreover, the evidence of record sufficiently documents a continuity of depressive disorder symptomatology since military service. Here, a Connecticut VA physician in 2007 appears to have reviewed the Veteran’s medical history from her VA treatment in North Carolina, documenting her past medical history of depression with anxiety for more than 20 years. In addition, although the Veteran told the January 2016 VA examiner that she did not seek mental health treatment for her depression until approximately 1995 while still married to her abusive second husband, she had been married to that husband since March 1985 and complained of symptoms of depression in service within months of marrying that husband. In summary, the lay and medical evidence suggesting the Veteran’s psychiatric impairment currently diagnosed as major depressive disorder with anxious distress began in service prior to her second marriage and continued throughout and after her second marriage, which occurred while on active duty, is evenly balanced with the medical evidence suggesting the symptoms of depression in service were acute and transitory. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for major (Continued on next page) depressive disorder with anxious distress is warranted. 38 U.S.C. § 5017; 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.