Citation Nr: 1323479 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-11 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2008 of a Department of Veterans Affairs (VA) Regional Office. The issue on appeal has been recharacterized to comport with the evidence of record. In June 2012, the Veteran withdrew his request for a hearing before the Board. The Board remanded the claim for further development in July 2012 and February 2013. The ordered development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT During the course of the appeal, the Veteran was diagnosed as suffering from depression, a condition that is related to his active service. CONCLUSION OF LAW The criteria for service connection for depression have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for 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). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or to assist was harmless and will not be further discussed. II. Entitlement to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of that disability, and medical evidence of a nexus between the present disability and the disability claimed in service. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). The current disability criterion of the service connection framework may be satisfied by evidence that the Veteran suffered from a disability at the time his claim was filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The Veteran's claim and all of his correspondence indicate that he seeks service connection for PTSD. Pursuant to VA regulation, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran's claim for service connection for PTSD fails because there is no evidence that he has been diagnosed as suffering from this condition. The Veteran has undergone two VA examinations, one in February 2012 and a second in April 2013. In both examinations, the examiners found that the Veteran did not meet the full criteria for a PTSD diagnosis. The Veteran's VA treatment records are also silent as to a diagnosis for PTSD. Vet Center records from 2007 show that the Veteran was described as having "some PTSD related anxiety," but there is no clear diagnosis of PTSD that conforms with the DSM-IV as required by § 4.125(a). Accordingly, it is not shown that the Veteran currently suffers from PTSD, or that he has been diagnosed as suffering from this condition at any time during the appeals period. That being said, the Board has broadened the Veteran's claim to include any diagnosed mental disorder. In Clemons v. Shinseki, the Court of Appeals for Veterans Claims held that when a claimant seeks service connection for PTSD and nothing more, such a claim must be "considered a claim for any mental disability that may reasonably be encompassed by several factors." 23 Vet. App. 1, 5 (2009). Under this framework, it is clear that the Veteran meets the criteria for service connection for a mental disorder. The Veteran underwent a VA examination in February 2012. That examination found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV, and that the Veteran did not have a current mental disorder that conformed to DSM-IV criteria. That same examination also acknowledged that the Veteran was diagnosed as suffering from depression by his primary care physician at the Phoenix VA in July 2007. At a subsequent April 2013 VA examination, the examiner once again concluded that the Veteran did not currently suffer from PTSD or any other mental disorder. This examiner also highlighted the Veteran's 2007 diagnosis of and treatment for a mental disorder, and he related this diagnosis and treatment to the Veteran's active service. Specifically, the examiner stated that the anxiety and depression symptoms from which the Veteran suffered in 2007 were related to his military service, as these symptoms centered on his Vietnam war service and traumas related to that war. The examiner also stated that the Veteran acknowledged struggling in the past with memories of Vietnam and that he sought treatment for it, but the Veteran also stated that since that time, he has dealt with such experiences better and that he is experiencing no symptoms at the current time. This evidence shows that the Veteran was diagnosed as suffering from a mental disorder during the pendency of his appeal, and that this disorder is related to his active service. Accordingly, service connection for depression is warranted. ORDER Entitlement to service connection for depression is granted. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs