Citation Nr: 1003496 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 07-13 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a psychiatric disability, including major depressive disorder and post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969, from May 1977 to February 1984 and from March 2003 to February 2005. He also served in the Air Force Reserves from June 1997 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The evidence is not clear and unmistakable that major depression pre-existed service and was not aggravated. 2. The Veteran currently has major depression that is related to service. CONCLUSION OF LAW A psychiatric disability, major depression, was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. § 3.304)(b) (2009). REASSONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. A Veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id at (b)(1); 38 U.S.C.A. §§ 1111, 1137 (West 2002). Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2009). If the disorder becomes worse during service and then improves due to in- service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Effective May 4, 2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition. The final rule conforms to Federal Circuit precedent in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). and applies to claims, which were pending on or filed after May 4, 2005. As the Veteran's case was pending as of that date, the amendment applies. Wagner, supra, and VAOPGCPREC 82-90 (July 18, 1990). The Veteran contends that he has an acquired psychiatric disability, which includes PTSD and major depressive disorder, consequent to his active military service. He also contends that his major depressive disorder was exacerbated by his active military service. See December 2009 Appellant's Brief. Service treatment records are negative for any indication of a psychiatric disorder, including major depressive disorder, during the Veteran's first two periods of active duty, and there is no indication that he was diagnosed with a psychiatric disorder at the time of his discharge in 1969 or 1984. There was also no indication of the Veteran being diagnosed with major depressive disorder at the time of his entrance onto active duty for his last period of service in March 2003. However, VA outpatient treatment records show that prior to his entry onto active duty for his last period of service in March 2003; the Veteran was treated for anger and stress in 1995 and 1996, treated for symptoms of depression as early as 2000, diagnosed with major depression in October 2001, and prescribed psychiatric medication for depression in February 2003. See outpatient treatment records from the VA Medical Center in West Haven, Connecticut. Furthermore, service treatment records for the Veteran's last period of active duty from March2003 to February 2005 show that the Veteran was again treated for depression as early as August 2003, and a Medical Board Report of December 2004 shows a diagnosis of major depression in the line of duty. The only opinion of record addressing the etiology of the Veteran's currently demonstrated major depressive disorder comes from the March 2005 VA examiner who noted that the medical record documents the Veteran's history of treatment for depression and symptoms of anger, interpersonal difficulties, mild paranoia and hypervigilance preceding his recent military activation, and opined that there was insufficient evidence to support a diagnosis of PTSD related to the Veteran's military experiences, but that it is at least as likely as not that the Veteran suffered a reactivation of his depressive disorder in the context of activation to Germany, and that the re-aggravation of his condition was likely aggravated further by his marital/divorce situation and employment difficulties/uncertainty. The examiner found that the 2001 treatment was not for depression, but for substance abuse. The record does not contain the report of an examination for entrance onto the Veteran's last period of service. The presumption of soundness is, therefore, applicable. There is clear and unmistakable evidence, as shown by the pre-service treatment records and the VA examiner's opinion that the psychiatric disability pre-existed service. It is not clear, however, that the disability underwent no aggravation in service. The Veteran was able to serve for some time after service before seeking psychiatric treatment. Moreover, the VA examiner's opinion can be read as indicating that the psychiatric disability was aggravated in service. Given the lack of clarity in the record, it cannot be said that the evidence is clear and unmistakable on the question of aggravation. If the presumption of soundness is not rebutted, the claim becomes one for ordinary service connection. Wagner v. Principi. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. The service treatment records, the Veteran's statements and the VA examiner's opinion establish the presence of major depression in service. The VA examiner provided a current diagnosis of major depression, and linked that diagnosis to the major depression identified in service. The criteria for service connection for major depression are met. ORDER Service connection for a psychiatric disability, major depression, is granted. _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs