Citation Nr: 1322482 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 07-30 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to November 1988 and from October 1990 to May 1991, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before the Board in August 2009. A copy of the hearing transcript has been associated with the record. In October 2009, the Board reopened the claim and then remanded it for further development. The Board remanded the Veteran's claim again in April 2011. FINDINGS OF FACT 1. The evidence of record demonstrates current diagnoses of posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Probative medical evidence shows that it is at least as likely as not that the onset of a diagnosed psychiatric disability is linked to the Veteran's active service. CONCLUSION OF LAW A psychiatric disability was incurred during active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran alleges that she has current psychiatric disabilities, to include PTSD and MDD, stemming from a traumatic event which occurred during her period of active service. Specifically, the Veteran contends that, while serving during the first Gulf War, her father died, and she was unable to see him prior to his death. She further indicated that she began to experience depressive symptomatology at that time. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2012). To prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Here, the Veteran's service medical records do not provide a diagnosis for any psychiatric disorder. After service, the Veteran has received VA psychiatric treatment, beginning in 1993, at which time she reported sleep disturbance, anxiety, depression, and flashbacks. She was diagnosed with PTSD and an adjustment disorder, and the examiner noted that MDD and an organic mood disorder were to be ruled out. During a VA examination in January 1995, the Veteran was diagnosed with MDD. A private treatment report, dated in April 2005, diagnosed the Veteran with MDD, and PTSD by history. That diagnosis was confirmed by the same provider in March 2006, though it was noted that PTSD was in partial remission. In support of the Veteran's claim, her spouse drafted a statement in June 2005 in which he indicated that he had known her prior to her entrance into military service, and he reported that, after service, she was withdrawn and depressed. A June 2007 VA examination resulted in a diagnosis of MDD. The examiner indicated that the criteria necessary to establish a diagnosis for PTSD were not met. An etiological opinion with respect to the MDD diagnosis was not provided. An October 2008 private evaluation report from a psychiatrist shows that the Veteran was diagnosed with major depression with increased anxiety and PTSD, which the doctor opined were as likely as not caused by her father's death in April 1991. At a Board hearing in August 2009, the Veteran testified that she learned of her father's heart attack in January 1991 when serving in Saudi Arabia. She was told by her commanding officer that arrangements to fly her home were attempted, but planes were grounded. As a result, she did not arrive home until two days following her father's death. She further testified that, following that event, she began experiencing anxiety attacks. Following a Board remand, an additional VA examination was conducted in April 2010. At that time, it was noted that the Veteran carried a diagnosis of MDD, not likely related to service. The criteria for PTSD were not met. The most recent VA psychiatric examination, dated in June 2011, confirmed the diagnosis of MDD, not related to military service. The examiner indicated a temporal relationship between her father's death and her military service, but found that her depression was not related to events in service or her military experiences. It was noted that the Veteran was first treated for depression in 2002, approximately 11 years following separation from service. However, that recited fact was in error. Following a review of the claims file, a September 2011 addendum opinion essentially restated the opinion from June 2011, noting that the relationship between the Veteran's depression and her period of active duty was merely temporal in nature. Although the recent VA opinions were ultimately negative, the Board finds that the "temporal relationship" noted by the examiner indicates that the Veteran's MDD had its onset during her period of active service, despite the fact that the trigger for her depression was not specifically caused as a result of her military experiences. While the Board is cognizant of the examiner's analysis, that analysis is not appropriate in the context of a claim for service connection. A disability need not flow directly from a veteran's military duties, but only to be incurred in the line of duty during service, and not be the result of willful misconduct. Where a disability first manifests in service and continues after service, the criteria for service connection are met. Therefore, while medical evidence of record is in conflict as to whether a current psychiatric disorder is related to active service, both her private examiner and the most recent VA examiner of record have found that her depression is directly linked to the death of her father, which occurred during her period of active service. As she has demonstrated the presence of a current disorder, in-service incurrence of that disorder, and two opinions have linked an incident which occurred in service to that disorder, all the elements to establish service connection are met. With regard to the negative etiological opinions of record, and the fact that no psychiatric disorders were diagnosed prior to separation, VA will resolve reasonable doubt where the evidence is in equipoise. 38 U.S.C.A. § 5107 (West 2002). VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA resolve reasonable doubt in favor of the claimant. 38 C.F.R. § 3.102 (2012). Evidence is in approximate balance, or equipoise, when the evidence in favor or and opposing the Veteran's claim is found to be almost exactly or nearly equal. When the fact finder determines that the positive and negative evidence relating to a veteran's claim are nearly equal, thus rendering any determination on the merits "too close to call," reasonable doubt is resolved in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence in this case is at least in equipoise with regard to the timing and origin of the Veteran's psychiatric disability. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a psychiatric disability was incurred in service and service connection is warranted for a psychiatric disability. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs