Citation Nr: 0001243 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-48 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a psychiatric disability, currently diagnosed as major depressive disorder with paranoid features. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from November 1992 to June 1993. This appeal arises from December 1995 and September 1996 rating decisions from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for a major depressive disorder with paranoid features. Since perfecting his appeal, the veteran moved to a last known address in Nevada. FINDINGS OF FACT 1. The medical evidence includes a diagnosis of a current psychiatric disability, currently diagnosed as chronic major depressive disorder with paranoid features. 2. There was no diagnosis of a psychiatric disability at entry into active duty, and medical records show that there is a continuity of psychiatric symptoms, including depression, since service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a psychiatric disability, currently diagnosed as major depressive disorder with paranoid features, is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. A psychiatric disability, currently classified a major depressive disorder, was incurred during active service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The July 1992 enlistment examination report stated that the veteran's psychiatric condition was normal, no psychiatric defects or diagnoses were noted, and he denied a history of nervous trouble of any sort. The veteran entered service in November 1992. In March 1993, the veteran's wife was seen at the mental health clinic for alcohol dependence. The examiner stated that no problems with the veteran were noted. In May 1993, the veteran presented at the mental health clinic with appetite and sleep disturbances, weight changes, and suicidal ideation. He had no homicidal ideations, delusions, or hallucinations. His dress was adequate, and his psychomotor activity was mildly slow. His affect was mildly restricted. With respect to his mood, the veteran reported that he did not care about anything. His speech was slow. He had no memory impairment, and his judgment was below average. He was oriented as to time, place, person, and situation. The diagnosis was adjustment disorder with mixed anxiety and depressed mood. A week later, the examiner prescribed medications. The veteran was instructed to return to the clinic but he did not keep his appointment in late May 1993. In June 1993, the veteran walked in to the mental health clinic. He reported that he was upset about family problems and ambivalent about staying in the Air Force. He denied any suicidal ideation, intent, or plan. The assessment was unchanged. He was told to return to the clinic but he did not keep his appointment 2 weeks later. Soon after, the veteran separated from service. The February 1994 outpatient progress notes from Philhaven Behavioral Healthcare Services stated that the veteran was at the clinic because of the breakup of his marriage in 1992- 1993 and the realization, 2 months ago, of a possible homosexual orientation. The veteran's global assessment function (GAF) score was 59-60, and his highest GAF in the past year was 71. The diagnosis was major depression of a single episode of moderate severity. The September 1995 letter from Philhaven stated the veteran was seen for 2 outpatient therapy sessions and 1 psychiatric medication evaluation and that the veteran terminated treatment prematurely. The September 1995 examination report from Bridgeway Center Inc. Behavioral Healthcare Services stated that the veteran worked as an asphalt handler until he injured his abdominal muscles while lifting asphalt 2 weeks earlier. He became very depressed because the injury forced him to change jobs. He hated his new job as a night shift clerk at a gas station because he hated dealing with customers and believed the supervisor talked badly about him. The veteran had many negative thoughts because he could not lift anything over 10 pounds or perform the work on engines that he enjoyed, and he feared never completing college. The veteran felt hopeless and was no longer interested in anything pleasurable. He reported no appetite and a decrease in energy. He felt life was worthless, and he did not care about anything. The veteran said that small tasks were difficult, and he sometimes thought about death. He reported that he felt this way in 1993 when his marriage broke up and that the depression at that time lasted off and on for 1-1/2 years. He reported paranoia that his roommate planned to throw him out, and he thought his job was not secure even though his co-workers assured him that it was. The veteran's GAF score was 55, and the highest GAF score within the past year was 70. The diagnosis was recurrent, moderate, chronic major depressive disorder with paranoid personality disorder and full interepisode recovery. In the December 1995 notice of disagreement and a September 1996 statement, the veteran alleged that, under the orders of his first sergeant and flight commander, he was examined at the mental health clinic in service due to suicidal behavior and dreams that he killed his wife. He alleged that he was examined several times per week from February 1993 to June 1993. He alleged that he was also seen at the Army Medical Center and placed on Doxepin, a medication for depression and mood elevation. He alleged that, following discharge, he was also examined 3-4 times per week from August 1993 to December 1993. He alleged that, after a move to another state, he was examined in February 1994 and placed on Zoloft for anxiety and depression related to problems developed in service. The veteran alleged that he was unable to function at a job for more than 6-7 months at a time or to function in college. Criteria The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A psychosis may be presumed to have been incurred service if it is manifested to a degree of 10 percent within one year following the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). A veteran is presumed to be in sound condition when accepted for service, with the exception of disorders noted at the time of entrance into service unless clear and unmistakable (obvious and manifest) evidence demonstrates that the injury existed prior to service. 38 U.S.C.A. §§ 1111; 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court established the following rules with regard to claims addressing the issue of chronicity: The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Therefore, notwithstanding the veteran's showing of an in-service injury, and statements of post-service continuity of symptomatology, medical expertise is required to relate his disabilities etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis As a preliminary matter, the Board will adjudicate the claim based on the current evidence of record because the veteran failed to report for scheduled hearings and VA examinations. During the pendency of this appeal, the veteran moved to several different cities in several different states. Generally, the RO learned of each relocation from postal service forwarding information. In spite of several attempts to locate the veteran, the veteran's current whereabouts are unknown. The veteran failed to report for scheduled hearings in August 1998, January 1999, and July 1999. The notice of the August 1998 hearing listed an ambiguous hearing date of 08/10/199, and the notice of the July 1999 hearing was returned as undeliverable. However, the veteran received notice of the January 1999 hearing because the notice was mailed to the veteran and was not returned as undeliverable. The United States Court of Appeals for Veterans Claims has held that the law requires only that the VA mail a notice; it then presumes the regularity of the administrative process "in the absence of clear evidence to the contrary." Mindenhall v. Brown, 7 Vet. App. 271 (1994). The veteran also failed to report for 2 scheduled VA examinations in October 1998. Moreover, the veteran's representative rested the appeal in June 1999, and neither the veteran nor his representative requested another examination or hearing or filed a motion for a new hearing. Therefore, the Board will adjudicate the claim based on the current evidence of record because notices were sent to the veteran's "latest address of record," and the veteran did not show good cause for failing to appear. See 38 C.F.R. § 3.655(b), 20.704(d) (1999). In any event, the evidence of record established a well grounded claim. The September 1995 examination report from Bridgeway Center Inc. stated a diagnosis of a current psychiatric disability, currently diagnosed as recurrent moderate chronic major depressive disorder with paranoid personality disorder. Service medical records in May 1993 and June 1993 showed an in-service diagnosis of a psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood. Moreover, a psychiatric disability manifested to a degree of at least 10 percent within 1 year of the June 1993 separation from service because, in February 1994, the Philhaven outpatient progress notes stated a diagnosis of major depression and a GAF score of 60. The veteran also satisfied the Caluza nexus requirement because the February 1994 examiner stated that the veteran was at the clinic partly because of the breakup of his marriage in 1992- 1993, an event during service. The record also showed continuing symptomatology since service because the examinations of February 1994 and September 1995 showed a diagnosis of a psychiatric disability, currently diagnosed as a recurrent chronic moderate major depressive disorder, and the veteran's lay statements asserted continuity of symptoms of a psychiatric disability since service. Therefore, the claim for service connection for a psychiatric disability, currently diagnosed as major depressive disorder with paranoid features, is well grounded. If the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The veteran received the opportunity but did not report for VA examinations and hearings. He filed lay statements with the RO, and the RO obtained medical records from the identified health care providers. The RO tried to maintain contact with the veteran who moved frequently without notice. Therefore, the VA has fulfilled the duty to assist under 38 U.S.C.A. § 5107(a). Regulations 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) (1999). In this case, a preponderance of the evidence shows that the veteran's psychiatric disability, currently diagnosed as recurrent chronic moderate major depressive disorder with paranoid features, had its onset during service. The evidence clearly shows that the veteran's chronic depressive disorder is attributed to his time in military service. Depressive symptoms were noted in service, depression continued to be reported after service, and the diagnosis of chronic major depressive disorder was associated with the veteran's symptoms in service. Accordingly, the service connection is in order. ORDER Entitlement to service connection for a psychiatric disability, currently diagnosed as a major depressive disorder with paranoid features, is granted. V. L. Jordan Member, Board of Veterans' Appeals