Citation Nr: 1011292	
Decision Date: 03/25/10    Archive Date: 04/07/10

DOCKET NO.  05-27 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for depression.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

M. Purdum, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1989 to 
September 1993.

This matter comes before the Board of Veterans' Appeals 
(Board) from a May 2005 rating decision of a Department of 
Veterans Affairs (VA) Regional Office (RO) that denied the 
Veteran's claim of entitlement to service connection for 
major depression on the basis that new and material evidence 
had not been received.

In December 2008, the Board reopened the Veteran's previously 
denied claim of entitlement to service connection for 
depression on the basis that new and material evidence had 
been received and remanded the case for additional 
development.  The file has now been returned to the Board for 
further consideration.


FINDING OF FACT

The Veteran's depression was incurred in or aggravated by his 
active service.


CONCLUSION OF LAW

Depression was incurred in or aggravated by the Veteran's 
active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 
1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.304 (2009).







REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist the Appellant

In light of the favorable disposition, the Board finds that a 
discussion as to whether VA's duties to notify and assist the 
Veteran have been satisfied is not required.  The Board finds 
that no further notification or assistance is necessary, and 
that deciding the appeal at this time is not prejudicial to 
the Veteran.

Service Connection

The Veteran seeks service connection for depression, which he 
contends initially manifested in service.  In order to 
establish direct service connection, three elements must be 
established.  There must be medical evidence of a current 
disability; medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  38 C.F.R. § 3.303 (2009); Hickson v. West, 12 
Vet. App. 247, 253 (1999).

The Veteran's VA and private treatment records indicate that 
he has been diagnosed with dysthymia, adjustment disorder 
with depressed mood, neurotic depression, and depressive 
disorder not otherwise specified.  Most recently, on VA 
psychiatric evaluation in May 2009, the Veteran was diagnosed 
with dysthymia, chronic depression.  This constitutes medical 
evidence of a current disability, and as such the first 
element required for direct service connection is met.

The second requirement for direct service connection, 
evidence of in-service incurrence or aggravation of a disease 
or injury, has also been met on the basis of continuity of 
symptoms after discharge.  The Board notes that service 
treatment records associated with the claims file are silent 
for complaint, treatment, or diagnosis of a psychiatric 
condition.  At the time of the Veteran's separation physical 
examination and history in May 1993, the Veteran reported a 
history of trouble sleeping.  Such report is the only 
evidence of record indicating possible symptomatology of a 
psychiatric condition during service.  

As there was no treatment or diagnosis of a psychiatric 
condition during the Veteran's period of service, the Board 
finds that chronicity in service is not established in this 
case.  As chronicity in service has not been established, a 
showing of continuity of symptoms after discharge is required 
to support the Veteran's claim of entitlement to service 
connection for depression.  38 C.F.R.        § 3.303(b).

The Veteran underwent VA psychiatric evaluation in November 
1993, two months after he separated from service.  At that 
time, the Veteran reported anxiety, irritability, 
forgetfulness, and poor control, over the past two years.  
The Veteran was diagnosed with dysthymia.  The Veteran's 
private and VA treatment records indicate that he has been 
treated for the above-described psychiatric conditions from 
November 1995 to the present.  Thus, the Board finds that, in 
the absence of evidence of chronicity in service, the Veteran 
has shown continuity of symptoms after discharge.

The third requirement of direct service connection, evidence 
of a nexus between the claimed in-service disease or injury 
and the current disability, is also met.  

At the time of the Veteran's May 2009 VA psychiatric 
evaluation, he reported a sad mood, lack of interest in 
significant activities, and decreased concentration for more 
than 15 years.  Subsequent to review of the Veteran's claims 
file and mental status examination, the VA examiner opined 
that it is as likely as not that the Veteran's "dysthymia 
(chronic depression)" is caused by or a result of symptoms 
during service.  

In sum, the Board finds that the Veteran currently has 
depression, that his depression was incurred in or aggravated 
by service, and that such has continued from discharge from 
service to the present.  Given the foregoing, service 
connection for depression is warranted.


ORDER

Service connection for depression is granted, subject to the 
laws and regulations governing monetary awards.


____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs