Citation Nr: 1331044 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 00-24 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric condition, to include depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to August 1974. This case comes to the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a decision in September 2008 the Board reopened the Veteran's claim for service connection for a psychiatric disorder to include depressive disorder. In an August 2011 decision the Board remanded this issue for further development, specifically requesting an addendum opinion to the June 2009 examination report clarifying whether it is at least as likely as not that the Veteran had an additional disability resulting from a mental disorder that was superimposed upon the Veteran's personality disorder during his military service. The Board finds this requested action was completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2013 the Board referred this case for a VHA expert medical opinion. Such an opinion was provided in April 2013. The Veteran and his representative were notified of the opinion and given adequate time to respond. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The evidence establishes that the Veteran currently has major depression which began during, and has continued since, his military service. CONCLUSION OF LAW The criteria for service-connection for a psychiatric condition, to include major depression, have been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is currently seeking service connection for an acquired psychiatric condition, to include depressive disorder. By way of history, in an April 1977 decision, the Board denied service connection for a nervous disorder. In a September 1997 rating decision, the RO denied service connection for dysthymia. In a November 1997 rating decision, the RO denied service connection for depression. In a November 1998 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim of service connection for depression. The RO sent a letter in November 1998 to the Veteran notifying him of this decision and providing him with his appellate rights. However, the letter was sent to a wrong address. The RO remailed the letter in April 1999 however the notation regarding the April 1999 mailing does not provide the address for that mailing and it is unclear whether the April 1999 letter was actually sent to the Veteran's correct address. In a May 2000 rating decision, the RO denied the reopening of a claim of service connection for depression. The Veteran perfected an appeal of that denial. In September 2008, the Board found that the November 1998 rating decision was not final because it is not clear whether the Veteran received notice of that rating decision and his appellate rights and reopened the Veteran's claim. The Board notes that throughout the long history of the Veteran's claim, he has continually asserted that he suffers from a psychiatric condition which began during his active military service. 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). 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 C.F.R. § 3.303(d). The extensive claims file contains some evidence the Veteran currently has a personality disorder. For example the Veteran was diagnosed with a personality disorder at his June 2009 VA examination. However, a personality disorder and other such "defects" are not "diseases" or "injuries" within the meaning of VA regulations and as such cannot be the basis for a grant of service connection. 38 C.F.R. § 3.303(c). However, evidence of an additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect, such as a personality disorder, during military service may be service-connected. Id. Considering VA regulations provide that reasonable doubt will be resolved in the Veteran's favor, the Board finds the evidence establishes the Veteran developed an additional psychiatric disability of major depression during his military service that superimposed upon his personality disorder. As such, service connection is granted. Service treatment records were reviewed and reflect the Veteran suffered from depression during his military service. At his June 1974 separation physical the medical officer noted the Veteran had depression. In the accompanying medical history survey the Veteran indicated he had experienced "depression or excessive worry." The medical officer added the Veteran was "severely depressed." The VHA opinion indicates that a retrospective look at the service records shows several symptoms that met the criteria for major depression and no indication that the symptoms were due to substance abuse or a medical condition. Therefore the Board finds the Veteran experienced depression during his military service. Additionally, again resolving doubt in the Veteran's favor, there is a current psychiatric disorder. The diagnoses have varied, at times, and a 2009 VA examiner concluded the Veteran did not have a psychiatric diagnosis, but, rather, a personality disorder. For these reasons, the Board requested a longitudinal review of the Veteran's long medical history, and, in the April 2013 VHA opinion, the psychiatrist concluded the most appropriate diagnosis is major depression. Therefore, the Board finds the Veteran is currently diagnosed with major depression. Finally, the Board finds the evidence establishes the Veteran's major depression began during and has continued since his military service. The evidence shows the Veteran sought treatment during his military service for complaints that included nervousness and depression. Shortly after service the Veteran filed a claim seeking service connection for a nervous condition, suggesting the Veteran continued to experience psychiatric symptomatology within the first few years after service. Additionally the record reflects the Veteran has continually received psychiatric treatment since approximately the mid 1990s. Despite the above, the VHA opinion indicates that the Veteran's depression did not begin during service. The psychiatrist noted that the record contains some suggestion the Veteran's depression began before his military service. For example the Veteran reported experiencing depression since he was approximately twelve years old. However, no psychiatric condition was noted at the Veteran's entrance to service and as such he is presumed to have been sound upon entry. See 38 U.S.C.A. § 1111. In order to rebut this presumption the VA must show by clear and unmistakable evidence that the Veteran's depression both pre-existed his military service and was not aggravated by his service. Id.; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The recent VHA medical expert opined the evidence suggested the Veteran's depression pre-existed his military service. However, a suggestion the condition pre-existed service is not sufficient to rebut the presumption of soundness by a clear and unmistakable standard as required by VA regulations. Therefore, the Board finds the evidence does not establish the Veteran's depression clearly and unmistakably pre-existed his military service, and the presumption of soundness is not rebutted. Based on all of the foregoing, and considering the benefit of the doubt rule, the Board finds the evidence establishes the Veteran's currently diagnosed major depression began during, and has continued since, his military service. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, his claim for service connection is granted. Duties to Notify and Assist The foregoing decision constitutes a full grant of all benefits sought on appeal. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER The Veteran's claim for service connection for a psychiatric disorder, to include major depression, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs