Citation Nr: 1331782 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-18 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from July to December 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, in which the RO denied entitlement to service connection for PTSD. Jurisdiction of the Veteran's claims file has been transferred to the VA RO in Detroit, Michigan. The United States Court of Appeals for Veterans Claims has held that VA must consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a result, the Board has considered the appellant's claim as entitlement to service connection for an acquired psychiatric disorder, including PTSD and depressive disorder not otherwise specified. This matter was previously remanded by the Board in March 2013 for further procedural development, including the scheduling of a VA examination to determine the nature and extent of the Veteran's psychiatric disorders. FINDINGS OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's currently diagnosed dysthymia (depression) is a result of his military service. CONCLUSION OF LAW The Veteran's dysthymia was incurred during his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board remanded this claim in March 2013 for further procedural development. The Board instructed the RO to ask the Veteran to identify all treatment for his psychiatric disorders, and obtain all identified records. In addition, the RO was to obtain any additional records from the Saginaw VA medical center since March 2009. The RO was then instructed to schedule a VA examination for the Veteran in order to determine the nature and extent of his psychiatric disorders. The examiner was to address both PTSD and any other psychiatric disorder. In July 2013, the RO sent the Veteran a letter requesting any additional treatment records. The Veteran responded that he has not received any private treatment for a psychiatric disorder. The Veteran was scheduled for a VA examination to determine the nature and extent of any psychiatric disorders. The examination was conducted in July 2013. As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand orders of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). II. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal. As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless. III. Service Connection for an Acquired Psychiatric Disorder Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD has slightly different requirements than general service connection. While the Board recognizes the Veteran's claim for PTSD, he does not have a current diagnosis of PTSD, so it will not be further discussed. To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Regarding requirement (1), the Veteran has a current diagnosis of dysthymia. The Veteran was diagnosed with dysthymia at the July 2013 VA examination after an examination and review of his claims file and medical records. Accordingly, requirement (1) is satisfied. With respect to requirement (2), the Veteran's service treatment records show symptoms of depression. While there was not a formal diagnosis of depression in service, the records note a lack of interest, poor concentration, and feelings of depression. The July 2013 examiner states that these are mild symptoms of depression. The Veteran's lay statements regarding his time in service corroborate and support the service treatment records. As a result, the Board finds that requirement (2) is satisfied. The "nexus" element requires a relationship between the in-service incurrence and the present disability. VA treatments records only date back to March 2008. These records suggest that the Veteran's mild symptoms of depression have continued after service. While the records do not show continuing treatment from the time of service to present, there is no evidence showing that the Veteran's current diagnosis is not related to his military service. On the contrary, while the July 2013 examiner found that the Veteran did not have PTSD as a result of his military service, the examiner opined that the Veteran's dysthymia was "a form of depression which incurred [sic] in the military." Considering the examiner's opinion, and the lack of any evidence to the contrary, the Board finds that the Veteran's current dysthymia is related to his military service. Requirement (3) is satisfied. As all three service connection requirements are satisfied, service connection for the Veteran's dysthymia is warranted. ORDER Service connection for dysthymia is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs