Citation Nr: 0004665 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-07 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to service connection for depression and dysthymia. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issue of entitlement to an increased rating for PTSD is addressed in the REMAND portion of this action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has depression, which began during his period of active service. CONCLUSION OF LAW Depression was incurred during active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records, to include his March 1971 separation examination, are silent or negative for complaint, treatment or diagnosis of depression or other psychiatric disability. An October 1980 VA record of treatment reflects that the veteran wasn't feeling as depressed as had been feeling, but was still feeling anxious and uptight. The veteran was prescribed medication, apparently for his psychiatric symptomatology. He was having no suicidal thoughts. VA reports of examination and treatment from 1986 until October 1988 reflect diagnoses of and treatment for anxiety, depression, and PTSD. In connection with an April 1997 VA examination, the veteran took the Minnesota Multiphasic Personality Inventory. The veteran appeared to have responded honestly to the MMPI and his responses were free of purposeful exaggeration or deceit. He was found to be experiencing debilitating emotional problems at the time of testing. He was preoccupied with physical symptoms and was depressed. The psychologist noted that the veteran was extremely afraid of close personal relationships. There was long term anxiety noted. The psychologist was particularly impressed with the high probability of explosive behavior, particularly if mood- changing chemicals were used. It was noted that medication may be necessary to treat the veteran's psychological problems. During the April 1997 April VA examination, the examining physician was immediately impressed with the degree of anxiety exhibited and tremulousness. The veteran stated that he had flashbacks every night prior to treatment, but now had them twice per week with medication. He appeared to be very depressed. He had been depressed since returning from Vietnam. Thus, the examiner stated, the veteran had been depressed for 25 years or more. The veteran was noted to score 25 in a Hamilton Rating Scale for Depression, which quantifies the severity of depression. According to the examining physician, a score of 24 or higher corresponded to severe depression. The physician believed the veteran was being truthful when reporting that he had been depressed since returning from Vietnam. The examiner noted that the score on the Hamilton Rating Scale for Depression indicated severe symptomatology. The Axis I diagnosis was PTSD and major depressive disorder. Global assessment of functioning was evaluated as 38. The examiner stated that he had treated inpatients who were less depressed than the veteran. The examiner strongly indicated more aggressive pharmacotherapy, and emphasized that the veteran would likely have grave difficulties functioning in any work environment. The depression was sufficiently severe to interfere with his cognition. The veteran had not been gainfully employed for 11 years, and it was his estimation that the veteran had been suffering to the extent observed upon examination during the entire period. In his view, the veteran's status of being disabled was legitimate. During an August 1998 VA examination, the veteran was adequately groomed and had good hygiene. He was social. Psychomotor activity was normal. Associative processes were tight, coherent, logical and goal directed at all times. Tone of speech was viable reflecting a full range of affect. Stated mood was depressed. Observed affect was depressed. Facial expression was depressed. The veteran reported feeling depressed chronically all of the time. He said he had felt depressed for the past 30 years. He said that he felt depressed, starting while in the service, but instead of seeking help or asking to see a counselor he started drinking and drank heavily to cover the pain. He said he now felt worthless, fatigued, and saw no hope for the future. He said he was much better currently than in the past and, that since taking his medication he no longer felt suicidal and that his depression was not quite as painful as it had been in the past. He denied any panic attacks. He denied any obsessions, preoccupations, compulsions or rituals. He denied hallucinations. Repeated questioning elicited no evidence of delusional activity. The veteran was oriented to day, date, place and person. Remote and recent memory were intact. General fund of information was intact. Abstraction ability was intact. With respect to specific evaluation of the veteran's PTSD, he dreamt of Vietnam at least twice a week. These were distressing, frightening dreams. He indicated he would do anything to stop thinking about Vietnam. He would get busy, do tasks, or anything else to distract his mind. He avoided crowds because crowds set off memories of Vietnam. He said he did have loss of memory for many important things such as his friends who were with him in Vietnam. He had lost interest in things that used to mean a lot to him, including his hobbies. He was detached from everybody, said he was close to no one and said he didn't see a future. He had increased sleep latency of at least two hours per night. He was irritable, easily angered and was hypervigilant and on guard wherever he went and whatever he did. The examiner determined that no specific diagnostic tests were recommended. The examiner's diagnoses were PTSD, dysthymic disorder, and major depression in remission. Global assessment of functioning was 90, with minimal symptoms. The veteran's symptoms were noted to be mild depression and some difficulty falling asleep at night, with occasional nightmares. The examiner noted that the veteran claimed that his depression started while he was in the service. The examiner noted that there was no record of this anywhere in the claims file. The examiner further noted that the veteran did not seek help for depression until 1986, which would mean he went 15 years without any treatment for depression if it began at the time the veteran was claiming. The examiner stated that he would tend believe that the depressive illness was not service connected. He believed that major depression and dysthymia was an autonomous process which was unrelated to service and the veteran's service experiences. May and October 1998 VA outpatient treatment records include reports from the mental hygiene clinic. The veteran continued to complain of nightmares, flashbacks, and an inability to trust others. His judgment and insight were adequate. The assessment was PTSD with depression. The psychiatrist assigned a GAF of 41. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. The April 1997 VA examiner's report indicates that the veteran's current depression began during his period of service, upon returning from Vietnam. Thus, the veteran's claim for service connection for depression is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board acknowledges the August 1998 VA examiner's opinion that the veteran's depression and dysthymic disorder are autonomous from the veteran's PTSD and are not related to the veteran's period of active service. The examiner asserted this opinion in part based on his observation that the veteran was first treated for depression in 1986, about 15 years after discharge from service. On this point, the Board notes that there is a record from the year 1980 which appears to indicate that the veteran was being treated medically for ongoing anxiety and depression. The Board is persuaded by the thorough psychological testing and clinical evaluation at the April 1987 VA examination, and the examiner's apparent experience treating persons with depression on an inpatient basis. This examining physician appears to have brought to bear a high degree of expertise in making his judgment that the veteran had been depressed since his return from Vietnam. The Board is further impressed that the veteran's April 1997 MMPI results indicated that had responded honestly to the MMPI and that his responses were free form purposeful exaggeration or deceit. The Board has taken this finding into consideration in assessing the veteran's overall credibility in this case, and thus finds the credibility of the medical histories and complaints as offered by the veteran at the VA examinations to be quite high. Furthermore, May and October 1998 VA outpatient treatment records include GAF scores of 41, and the examiner coupled the depression with the service-connected PTSD. In light of the foregoing, the Board is persuaded by the opinion of the April 1997 VA examiner that the veteran's ongoing depression had its origins during the veteran's period of active service, upon his return from Vietnam. The Board notes that while the August 1998 VA examiner found the veteran's major depression to be in remission, current depression was noted upon objective examination and in the diagnostic findings. In sum, the Board finds that the preponderance of the evidence shows that the veteran has current depression which began during the veteran's period of active service. Accordingly, service connection for depression is granted. The Board considers this grant of service connection for depression to be inclusive of the veteran's claim for service connection for dysthymia. ORDER The claim for service connection for depression is granted. REMAND The veteran seeks a rating higher than his current rating of 30 percent for PTSD. In the decision portion of this action, above, the Board has granted service connection for depression. The same rating criteria are used to rate depression and PTSD. See 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9434 (1999). Additionally, the demarcation between PTSD and depression symptomatology appears to be problematic at best. Since the decisions of how to rate the veteran's PTSD and how to rate his depression are so closely tied to one another, the Board finds that the issues of rating the veteran's service-connected PTSD and depression are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board is also concerned about the large disparity between the April 1997 and August 1998 VA examination results. The April 1997 examination, which included validated psychological testing and evaluation by a physician who was apparently experienced in treating mental illness, yielded results indicating that the psychiatric problems were quite severe, while the August 1998 examination report describes the veteran's symptoms as "minimal." Yet May and October 1998 VA outpatient treatment records appear to support a finding that the symptoms were severe. The VA has the duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims has held that the duty to assist the veteran includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA or private, who have evaluated or treated him for psychiatric disability since March 1997. After securing any necessary authorizations, the RO should request copies of all indicated records which have not been previously obtained and associate them with the claims folder. 2. After the above development has been completed, but in any event, the RO should schedule the veteran for a comprehensive VA psychiatric examination by a psychiatrist, in order to determine the manifestations of the veteran's service-connected depression and PTSD. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary), should be conducted in order to identify and describe the symptomatology attributable to the veteran's PTSD and depression. The reports of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the depression and PTSD affect occupational and social functioning. The examiner is asked to express an opinion as to which of the following criteria best describe the veteran's psychiatric disability picture due solely to the veteran's service-connected psychiatric disabilities, currently characterized as PTSD and depression: (1) Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss; or (2) occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing or maintaining effective work and social relationships; or (3) occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships; or (4) total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A multi-axial assessment should be conducted, and a thorough discussion of Axis IV (psychosocial and environmental problems) and Axis V (Global Assessment of Functioning (GAF) score), with an explanation of the numeric code assigned, is to be included. The examiner should also review the April 1997 and August 1998 VA examination reports. The examiner should express an opinion as to the reasons for the apparent disparity between the two evaluations. The claims folder with a copy of this remand must be made available to the physician for review in conjunction with the examination. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 3. Following completion of the requested actions, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the report does not include sufficient data or adequate responses to the specific questions posed, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2. 4. Then, the RO should undertake any other indicated development, and readjudicate the issue of entitlement to an increased rating for PTSD, as well as assign an initial rating for depression, in the manner deemed most appropriate by the RO in light of the evidence of record. Since the veteran contended in his notice of disagreement received in March 1997 that he is unemployable due to service connected psychiatric disability, the RO should consider the provisions of 38 C.F.R. § 3.321(b) in adjudication of the claims. If the benefits sought on appeal are denied, then the appellant and his representative should be provided a supplemental statement of the case which reflects RO consideration of all issues in appellate status and all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals