Citation Nr: 1319611 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 13-11 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for depressive disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Peter J. Meadows, Esquire ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty with the Navy from October 1943 to October 1944. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical and competent and credible lay evidence of record demonstrates that the Veteran's depressive disorder NOS is related to active duty. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for depressive disorder NOS are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Service Connection The Veteran contends he has a depressive disorder NOS that is related to his military service, specifically his young age of 15 years old upon enlistment in the Navy, diagnosis and treatment for gonorrhea, two of his brothers dying while in action, his absence without leave (AWOL) status, being apprehended and sent to the brig and his dishonorable discharge. See, e.g., Veteran's Statement, December 2010. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced sadness and depression since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the nexus between in-service events and subsequent depression falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at1377 n.4 (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's current mental condition and to address the question of whether his service caused his depressive disorder. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). The Board finds that service connection is warranted for a depressive disorder. The record clearly establishes that the Veteran has a current diagnosis of depressive disorder NOS and has been receiving treatment for the condition since 2010. See VA mental disorders examination, June 2011; see also Glory Psychiatric Center, October 2010. The Board also finds that the service records show the presence of an in-service injury. The Veteran reports that he enlisted in the Navy in October 1943 at the age of 15 years old but lied about his age by giving an incorrect birth date of September [redacted], 1925. The service personnel records show that a correct date of birth of January [redacted], 1928 was received by the Navy in March 1944, but that prior to that time, the Veteran's date of birth was incorrectly listed as September [redacted], 1925. The Veteran also reports that he was initially diagnosed with gonorrhea after entrance into service and was transferred to the Navy hospital for almost a year of treatment. The service treatment records corroborate the Veteran's statements, showing that in November 1943, the Veteran was diagnosed with gonococcus infection and transferred to the U.S. Naval Hospital for further treatment. The Veteran states that while at the U.S. Naval Hospital, he received a letter from his mother, informing him that one of his three older brothers had been killed while serving in the South Pacific. The Veteran was later informed that a second brother was killed while serving in Italy and a third was injured while serving in Okinawa. As a result of this news, the Veteran went AWOL several times in attempts to get home to see his mother in Puerto Rico. The Veteran's personnel records confirm that he went AWOL, first in May 1944 and again in July 1944. In August 1944 the Veteran was declared a deserter. According to the Veteran, after being apprehended by military police, he was placed in isolation at the brig for a month and only provided bread and water for sustenance. The Veteran claims, and the record corroborates, that he was dishonorably discharged from the Navy in October 1944. The Veteran's discharge status was changed to a general discharge under honorable conditions in August 1982. The Board finds the verification of the Veteran's reports of various traumatic events during service constitutes in-service injuries, and the second element of service connection is established. Regarding the third element of service connection, a nexus between the current diagnosis of depressive disorder NOS and in-service injury, the Veteran reported first feeling depressed in service due to the above-mentioned events. In an April 1954 letter, the Veteran recounted these same in-service events in detail. The Veteran claims that he has suffered from depression since service. See Veteran's Statement, December 2010; see also Dr. G. L. Winfield, Independent Medical Evaluation, April 2012. In October 2010, the Veteran was admitted to the hospital for five days with a three month history of altered mental status. The Veteran had been aggressive towards family members and most recently, threatened his wife with a knife. See Florida Hospital, Consultation, October 2010. The Veteran reported recent stressors of a bankruptcy suit, but additional stressors of the loss of his brothers who died in the Navy. Id. The Veteran was referred to the Glory Psychiatric Center for outpatient treatment. At his first session, the Veteran discussed suffering flashbacks to World War II and having nightmares about his brothers being killed while serving. See Glory Psychiatric Center, Patient History, October 2010. The Veteran was diagnosed with depressive disorder NOS. In July 2011, the Veteran underwent a VA mental disorders examination. The examiner reviewed the Veteran's c-file, medical records, and summarized the Veteran's history, including his time in the military. The examiner diagnosed the Veteran with depressive disorder NOS. The examiner opined that it is less likely as not that the Veteran's current mental condition is the same as or related to military service. The rationale provided was that the Veteran's current mental condition appears to be age and health related, altered mental state in October 2010 resulted in hospitalization, wife reports aggressive and bizarre behavior for three months prior to hospitalization, and Veteran is currently being treated for depressive and dementia symptoms monthly. In his rationale, the examiner failed to consider the Veteran's lay statements about his depression beginning in-service and continuing to the present. Additionally, there is no medical evidence of record showing treatment of the Veteran for dementia. The Board therefore finds that the July 2011 VA medical opinion is of reduced probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Veteran subsequently submitted an April 2012 independent medical evaluation from a private physician, Dr. G. L. Winfield. The doctor reviewed the Veteran's relevant service records and conducted a clinical interview of the Veteran. The doctor summarized the Veteran's traumatic in-service experiences, including his enlistment at 15 years old, diagnosis of gonorrhea, death of his two brothers, AWOL status, brig confinement and dishonorable discharge. The Veteran stated that his depression began initially in-service at the Naval hospital as a result of the death of his brother, inability to return home, one-year hospital confinement, and month spent in the brig. The Veteran reported that his depression has continued since service. The doctor opined that based on his review of the relevant records and interview of the Veteran, it is highly likely that the Veteran's depressive disorder had its origins in service and/or is related to his in-service experiences. The Board finds that the Veteran's reports of an initial feeling of depression in-service, with those symptoms continuing to the present, are credible, especially in light of the April 1954 letter that documents similar feelings of suffering decades before the claim for service connection was received. The record therefore contains competent and credible medical and lay evidence in support of the claim and some competent medical evidence weighing against it. The Board finds that the evidence is at least in equipoise regarding service connection for depressive disorder NOS and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. All the elements necessary for establishing service connection are therefore met and the Veteran's claims for service connection for depressive disorder NOS is granted. ORDER Entitlement to service connection for depressive disorder NOS is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs