Citation Nr: 0005013 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-12 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a depressive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from October 1971 to April 1973. This appeal is before the Board of Veterans' Appeals (Board) from a May 1997 rating decision from the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO) that reopened the claim and denied service connection for a depressive disorder. FINDINGS OF FACT 1. Service connection for a psychiatric disorder was denied by the Board in June 1976. 2. The medical evidence added to the record since the Board's June 1976 decision provides medical evidence of a nexus between the veteran's current psychiatric disorder and his service, warranting reopening of the claim. 3. Service medical records show treatment for depression. 4. The veteran has provided lay and medical evidence that demonstrates a continuity of symptomatology and a current diagnosis of a depressive disorder. CONCLUSIONS OF LAW 1. With the submission of new and material evidence, the claim for service connection for depression was properly reopened. 38 U.S.C.A. § 5108 (1991); 38 C.F.R. § 3.156 (1999). 2. The claim of entitlement to service connection for a depressive disorder is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. A depressive disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1111 (West 1991); 38 C.F.R. §§ 3.303, 3.304(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The August 1971 entrance examination report stated that the veteran's psychiatric health was normal, and the veteran denied a history of nervous trouble of any sort. In January 1972, a military examiner noted that the veteran reported symptoms of depression of unknown etiology. The impression of anxiety was treated with medication, and the veteran was immediately referred to a psychiatrist. The veteran's mood and affect were sad in the interview with the psychiatrist. The veteran reported becoming depressed because her mother kicked her out of the house on Christmas. The impression was a depressive reaction. In August 1972, the veteran went to the clinic with complaints of being depressed again. The February 1973 separation examination report stated that the veteran's psychiatric health was normal. However, the examiner noted that the veteran had trouble sleeping caused by depression and that she was treated for depression at Wilford Hall in February 1972. The examiner further noted that the veteran's paternal grandfather committed suicide and that her father was manic-depressive. The veteran was examined in March 1973 for complaints of depression. The military psychiatrist noted that she seemed angry and frightened more than depressed. The psychiatrist reviewed the veteran's performance reports that indicated that she was a capable and intelligent person but that a quarrelsome, sarcastic attitude marred her interpersonal relationships. The diagnostic impression was cyclothymic personality preponderantly expressed by periods of depression, disappointment, and boredom. The psychiatrist recommended antidepressant medication and long-term psychiatric attention following the veteran's discharge from service. In April 1973, the social service nurse practitioner stated that the veteran's primary problems included depression. Following service, VA treatment records show that the veteran was treated for over 65 incidents of self-inflicted lacerations from 1974 to 1997. The veteran, who was well known to the emergency room staff, received stitches, medications, and/or counseling each time she slashed her arm, wrist, leg, or ankle with a razor blade. Over the years, the veteran told numerous examiners of additional cuts for which she did not seek treatment. The veteran underwent a VA examination in June 1973. She reported getting depressed. The mental status examination revealed that the veteran seemed slightly depressed but she was not particularly anxious, and she did not show psychotic symptoms. The veteran was hospitalized from April 1974 to July 1974 for complaints of depression for years, with recent episodes of crying for no apparent reason. The diagnoses included improved depressive neurosis and schizoid personality, and the examiner opined that she was capable of assuming employment or attending school. The veteran was hospitalized in December 1974 to September 1975 for suicidal gestures with prescribed medications. The diagnoses included depressive neurosis and passive-aggressive personality. Service connection for cyclothymic personality was denied by the RO in August 1973 and June 1974. The veteran filed an appeal from these determinations. The veteran's February 1975 statement alleged that the diagnosis of cyclothymic personality was incorrect because she had been hospitalized twice for depression. The April 1976 medical opinion from a private psychiatrist stated that he had reviewed the veteran's medical records. The private psychiatrist opined that the veteran had a personality disorder, affective type (depressed). The diagnosis was not cyclothymic because there was no data documenting periods of elation or unusual well being alternated with depression. Service connection for a psychiatric disorder was denied by the Board in a June 1976 determination. The evidence at that time included an independent medical expert opinion to the effect that the veteran's history did not suggestive a depressive neurosis and that there was no relationship between her illness and her duties in the military service. The August 1977 assessment was severe depression with a high suicide risk. In September 1997, the examiner noted that the veteran had depression. In October 1977, the veteran attempted suicide. She deliberately overdosed on medication and was taken by ambulance to the emergency room where her stomach was pumped. The October 1997 and November 1997 diagnoses were depression. The veteran was hospitalized from November 1978 to March 1979. The veteran's December 1978 letter alleged that she was hospitalized for a personality disorder that was aggravated by service. The discharge assessment was a chronic character disorder. The members of the veteran's treatment team asserted that she was not psychotic or depressed. The examiner opined that she could return to work as soon as she was discharged. The veteran was hospitalized for 12 days in April 1978 to May 1978 after she slashed her right forearm and was treated in the emergency room. The examiner stated that the veteran's had borderline personality disorder (BPD). By rating action of April 1979, the RO found that the evidence warranted no change in the prior denial of service connection. The veteran was hospitalized for about 1 week in December 1982 to January 1982. In April 1982, the veteran reported that she had been depressed for 2 weeks and continuously thought of suicide and of cutting her wrists. The diagnosis was dysthymic disorder, continuous alcohol abuse, and passive-aggressive personality disorder. The veteran was hospitalized for about 1 week in April 1982 to May 1982. The diagnoses were Axis I: chronic dysthymic disorder and Axis II: dependent personality. The RO confirmed the denial of service connection for a nervous condition by rating action of July 1982. The assessment in September 1983 and October 1983 was that the veteran was depressed. The veteran was hospitalized from October 1983 to January 1984. The diagnoses included Axis I: dysthymic disorder and continuous alcohol abuse and Axis II: BPD. The February 1984 assessment was that the veteran was depressed. The veteran was then hospitalized for about 2 weeks in March 1984. She reported becoming increasingly depressed over the last couple of weeks since being fired from a job, and the examiner noted that the veteran had chronic depressive symptoms. The diagnoses included Axis I: dysthymic disorder and alcohol abuse and Axis II: BPD. The veteran underwent a VA examination in April 1984. The veteran reported feeling depressed and suicidal. The diagnosis was probable major recurrent depressed affective disorder, in nature superimposed on a chronic dysthymic disorder. The examiner stated that there was no evidence of cyclothymia. The December 1989 diagnoses included severe dysthymic disorder and the BPD of an adult child of an alcoholic. The examiner noted that depression was prevalent, punctuated by episodes of anxiety and agitation. By rating action of May 1990, the RO again confirmed the prior denial and found that no new and material evidence had been submitted to reopen the claim for service connection for a psychiatric disorder. The diagnosis in February 1992 and August 1992 was depression, and medications were prescribed for anxiety. The December 1992 diagnosis was recurrent major depression and BPD. The diagnosis in March 1993, May 1993, and July 1993 was depression. The September 1993 diagnosis was recurrent depression. The January 1994 diagnosis was BPD but later in January 1994, the examiner noted that the veteran was depressed. In February 1994, the veteran received an emergency counseling session. The examiner noted that the veteran was in profound inner conflict over a wish to die but was not psychotic. The March 1994 diagnosis was BPD. In April 1994, the veteran reported being depressed. In May 1994, the veteran stated that she was going to kill herself, and the examiner stated that the veteran's evident depression strongly reinforced her words. In another session in May 1994, the veteran reported another wrist laceration episode the previous night, to which the examiner opined an underlying apathy, resentment, and preoccupation with the rape in service. Later in May 1994, the diagnosis was depression and grief. In June 1994, the veteran reported being very depressed and suicidal. In August 1994, the veteran was admitted for 2 days to the hospital. The examiner noted that the veteran was very depressed and suicidal before, during, and after the hospitalization. The diagnosis in August 1994, September 1994 and October 1994 was BPD. The October 1994 examiner noted that the veteran appeared depressed, and the December 1994 diagnosis was a laceration secondary to depression. The January 1995 diagnosis was mild depression with suicidal features. The February 1995 diagnosis was depression. Later in March 1995, the veteran was fired from her tutoring job because a student complained about the scars and bandages on her wrists, and she complained of feeling depressed. The April 1995 diagnoses included depression. The May 1995 diagnosis was depression with recurrent suicidal ideation. The veteran was hospitalized for 6 days in May 1995 to June 1995 for episodic alcohol abuse, BPD with depression and repetitive self-mutilation, and moderate stress. The examiner noted that her condition at discharge was not obviously improved, although anger appeared to have replaced her tears and depression. The July 1995 diagnoses were anxiety and depression. The August 1995 diagnosis was depression. In September 1995, the veteran complained of depression. The diagnosis in October 1995, November 1995, and December 1995 was depression. In February 1996, the veteran was depressed and suicidal. In March 1996, the veteran told the examiner that "it" was in her head and had become a part of her. The veteran stated that "it" wanted to kill her, hated her, and yelled at her. The examiner noted that the veteran projected a split within herself. The April 1996 examiner noted that the veteran was struggling to maintain some personal momentum as a strategy for coping with an undertow of depression. The diagnosis was depression. The May 1996 impression was BPD. In June 1996, the examiner noted that the veteran does not have a psychotic diagnosis but that the prescribed medication had proven beneficial in borderline states such as the veteran's. In July 1996 and August 1996, the veteran reported being depressed. The July 1996 occupational therapist stated that the veteran exhibited a minimal decrease in symptomatology, including that of BPD and depression. The September 1996 assessment was depressive symptoms. The veteran was hospitalized for 2 days in September 1996 to October 1996 for depression, not otherwise specified (NOS), and BPD. The October 1996 examiner noted a depressed mood. The veteran was hospitalized for 2 more days later in October 1996 for adjustment disorder with depressed mood and BPD. The December 1996 diagnosis was BPD. The January 1997 diagnoses were depressive disorder NOS and BPD. In February 1997, the diagnoses were depression, BPD with dysthymic mood, and BPD with depressed mood. The veteran was referred for an overnight admission about a week later. The discharge Axis I and Axis II diagnoses were BPD with depression and suicidal ideation. The March 1997 assessment was BPD and dysthymic mood. In January 1997, the veteran requested that his claim for service connection for a depressive disorder be reopened. The January 1997 letter from the veteran's VA psychologist stated that he had provided individual psychotherapy to the veteran on an every-other-week basis for the past 8 months. The psychologist recently reviewed the veteran's service medical records and inpatient and outpatient medical records beginning with admission to the VA inpatient psychiatric service in April 1974 for depression. The psychologist opined that the veteran had been suffering from a major depressive disorder beginning to be clinically evidence and significantly exacerbated during her last few months in the Air Force and continuing to the present time. While it was true that Axis II problems, referred to by several clinicians as BPD, were also manifest during the ensuing years of treatment, the psychologist opined that the problems of depression and suicidal behavior had been the predominant theme in her treatment and had prohibited the sustained efforts necessary to stay out of the hospital and to be competitively employed. Recently, the psychologist reviewed with the veteran the events leading up to her discharge from service and the first year post-discharge that ended in her hospitalization. The veteran enlisted in the Air Force with the hope of becoming a medic, and after completing 12 weeks of training, was stationed in a flight surgeon's office, laughed at by her supervisor "for asking stupid questions", not given proper training or supervision, and being alienated from a predominantly male work group. Finally, a fellow serviceman raped her but no significant disciplinary action was taken. The veteran was depressed for the last year of her 18-month enlistment, sought and received treatment for depression in the military clinic, and was prescribed medications from that clinic. The veteran was hospitalized in April 1972 with a diagnosis of depression and schizoid personality. The diagnosis at the April 1973 discharge from service was cyclothymic personality, preponderantly expressed by periods of depression. The veteran was hospitalized for 8 months in December 1974 for depressive neurosis. The psychologist opined that depression was a major factor in the early episodes of hospitalization and treatment, and the events surrounding her last year in service seemed to provide a context of personal failure and trauma that supported a diagnosis of depression. The veteran's most recent diagnosis, after 20 years of multiple hospitalizations and continuous therapy, was that of depressive disorder NOS and BPD. In March 1997, the veteran underwent a VA mental disorders examination by a board of 2 psychiatrists. Separately and independently, the 2 psychiatrists evaluated the veteran's records and drew conclusions before meeting for a brief conference. The examiner stated that the medical records were quite adequate in providing a basis for a well-grounded diagnosis because they showed periods of hospitalization for depression, a history of suicidal gestures and behaviors, and long-standing difficulties with relationships. It was recognized that the veteran had manifestations of depression, instability, and cyclothymia throughout the years but the basic diagnosis was clearly BPD. The March 1997 psychosocial rehabilitation report summarized the mental health diagnoses for the veteran from "24 volumes of inpatient records and 3 volumes of vocal rehabilitation charts." By rating action of May 1997, the RO reopened the veteran's claim and considered the newly submitted medical opinion and evidence; the RO again denied service connection for a depressive disorder. The veteran, assisted by her representative, provided sworn testimony at a regional office hearing in August 1998. She testified that she was not in counseling or treatment for any mental disorder prior to service. Transcript (August 1998), page 3. The veteran testified that she received ongoing treatment for depression from the VA over the last 26 years. Transcript (August 1998), pages 4 and 6. She participated in a therapy group consisting of both men and women. The men in the therapy group talked about the same thoughts and feelings she had; however, the men received 100 percent disability for depression and the women received no pension because they were diagnosed with personality disorders. Therefore, the veteran perceived differences in the attitudes toward men versus women. Transcript (August 1998), page 4. Criteria Under Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a), "new" evidence "means evidence not previously submitted to agency decision makers . . . which is neither cumulative nor redundant"; "material" evidence is new evidence "which bears directly and substantially upon the specific matter under consideration" and "which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim"). 38 U.S.C.A. § 5108; Fossie v. West 12 Vet. App. 1 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a). A two-step analysis is conducted under 38 U.S.C.A. § 5108. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In Elkins v. West, 2 Vet. App. 422 (1999) (en banc), Court held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a), i.e., the new evidence bears directly and substantially on the specific matter, and is so significant that it must be considered to fairly decide the merits of the claim; second, if new and material evidence has been presented, immediately upon reopening the Board must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Board may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See Elkins v. West, 2 Vet. App. 422 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Justus v. Principi, 3 Vet. App. 510 (1992). 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). 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). 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 (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, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). A personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes and may not be service- connected. See 38 C.F.R. § 4.9, 4.127 (1999). 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 Service connection for a psychiatric disorder was denied by the Board in June 1976. Subsequently, additional evidence has indicated a relationship between the veteran's depression and her military service. As such, the evidence is new and material and the claim has been reopened. The claim of entitlement to service connection for a depressive disorder is well grounded. The veteran was diagnosed with a current depressive disorder because, in January 1997, the diagnosis was a depressive disorder NOS, and in February 1997, the Axis I and Axis II diagnoses included depression. The veteran was diagnosed with a depressive disorder in service. The February 1973 military examiner noted that the veteran was treated for depression in February 1972, and the January 1997 VA psychologist stated that the veteran was hospitalized in April 1972 with a diagnosis of depression. Although service medical records do not include the February 1972 and April 1972 treatment reports, transmission of medical information through a physician is sufficient to show in-service treatment when determining well groundedness. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). In any event, service medical records show that the January 1972 examiner noted symptoms of depression and referred the veteran to a psychiatrist whose impression was a depressive reaction. The veteran satisfied the Caluza nexus requirement because the record shows continuing symptomatology of a depressive disorder since service. The January 1997 psychologist opined that the events in the last year of service supported a diagnosis of depression, and in March 1997, two VA psychiatrists stated that periods of hospitalization for depression, a history of suicidal gesture and behaviors, and long-standing difficulty with relationships were adequate to well ground the claim. Therefore, the claim for service connection for a depressive disorder 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 the VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The veteran received several VA examinations, provided sworn testimony at a hearing, and filed numerous lay statements with the RO. The RO obtained the identified medical records, which are almost exclusively limited to service and VA records. However, the March 1997 psychosocial rehabilitation report referred to 24 volumes of VA inpatient records and 3 volumes of vocal rehabilitation charts for the veteran "in Building 148 alone." At the August 1998 hearing, the veteran's representative indicated that the veteran had applied for social security disability benefits. Transcript (August 1998), page 1. Although the claims file is 6 inches deep with 2-sided copies of medical records from 1971 to 1997, it is not clear if copies of all 27 referenced volumes are in the record. Indeed, at least 2 examiners referenced medical records that were not in the claims file. Therefore, the VA has a duty to assist under 38 U.S.C.A. § 5107(a). However, this case may be decided on the merits without the above-referenced missing records because the evidence is in approximate balance for and against service connection. Against service connection, a personality disorder is not entitled to service connection. See 38 C.F.R. § 4.9, 4.127 (1999). In March 1997, two VA psychiatrists opined that the basic diagnosis was clearly BPD, and many treatment records showed BPD or other personality disorders as the sole diagnosis. Moreover, some treatment reports stated that the veteran was neurotic and not psychotic. The opinion obtained at the time of the prior Board decision indicated that the veteran did not appear to have a depressive neurosis and that there was no relationship to her service. In support of service connection, the January 1997 psychologist opined that depression had been a predominant theme, and in February 1997, the discharge Axis I and Axis II diagnoses were twice listed as BPD with depression and suicidal ideation, with depression listed as diagnostic code 311. That is, depression was listed as an Axis I clinical disorder and as an Axis II personality disorder. In addition, many treatment reports listed depression as the sole diagnosis, the veteran was treated with antidepressant medications, and even the March 1997 psychiatrists conceded that the veteran manifested depression throughout the years. Moreover, the veteran told examiners that she was raped in service, and the January 1997 psychologist opined that the events of the last year in service supported a diagnosis of depression. The evidence is at least in equipoise. There is at least an approximate balance of evidence in favor of and against the claim. Accordingly, a depressive disorder was incurred in service. ORDER Entitlement to service connection for a depressive disorder is granted. V. L. Jordan Member, Board of Veterans' Appeals