Citation Nr: 1336692 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-34 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for major depressive disorder. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The issue of entitlement to an increased initial rating for posttraumatic stress disorder is REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDING OF FACT It is at least as likely as not that the Veteran's diagnosed major depressive order was caused by active service or has been aggravated by service-connected post-traumatic stress disorder. CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a service connection for a disability, a Veteran must show: t he existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the case of any Veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and shall resolve every reasonable doubt in favor of the Veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). The ordinary meaning of the phrase engaged in combat with the enemy requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. 38 U.S.C.A. § 1154(b) (West 2002); VAOGCPREC 12-99 (1999), 65 Fed. Reg. 6,256 (2000). The Veteran asserts that he is entitled to service connection for a major depressive disorder. He claims that he incurred major depressive disorder while in service during Vietnam. Specifically, he states that he witnessed a friend die on the battlefield before medical personnel could arrive during combat. The Veteran stated that he experienced symptoms of depression after he was discharged in January 1972, but self-medicated with drugs and alcohol. The Veteran's service medical records are silent for any reports of any psychiatric condition. The Veteran has submitted lay statements from this sister and wife. The Veteran's sister describes him has being happy-go-lucky before being stationed in Vietnam and on his return she noticed he became withdrawn from his family and friends. The Veteran's wife stated that he changed when he came back from Vietnam and started having mood swings and acting in a strange manner. The Veteran was first medically diagnosed with a major depressive disorder in February 1989, when he was admitted into a hospital after a psychotic episode that included pulling a firearm on his family members. He was prescribed medication and therapy for treatment. The Veteran was hospitalized on at least two other occasions in September 2010 and October 2010, with similar episodes of pulling a firearm on his family members. Hospital records show that the Veteran was diagnosed with a major depressive disorder in each intake to a medical facility. At a January 2013 VA examination, the examiner concluded that the Veteran met the criteria for PTSD due his current psychiatric symptoms due to his combat experiences. The VA examiner also diagnosed major depressive disorder, recurrent and severe, without psychotic features. The Veteran was assessed to have a GAF score, but no GAF score was assigned for major depressive disorder because it was in remission. The examiner opined that the Veteran's depression was not service connected. However, the examiner also reported that the Veteran had lost interest in some of the activities he enjoyed before the war which was due to his depressive disorder. The Veteran is currently diagnosed with a major depressive disorder and thus has a present injury or disease. VA has conceded stressful events in service in finding that service connection for posttraumatic stress disorder was warranted. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Finally, the Board finds that the January 2011 VA examination satisfies the final factor for a service-connection claim which is the nexus opinion that links the Veteran's depression to his current psychiatric disability. The VA examiner reported that the Veteran had experienced a loss in some of his interests in recreation and leisure pursuits since returning from Vietnam. The examiner further opined that his loss in interest in these activities was not due to PTSD, but rather attributable to depression. The January 2011 VA examiner found that the Veteran had some loss of interest in activities due to PTSD, and a further loss of interest in activities due to depressive disorder, indicating that the depressive disorder symptomatology was aggravated by the PTSD. The January 2013 VA examiner stated that it was not possible to distinguish the impairment caused by PTSD and that caused by depressive disorder. The Board finds those opinions from the examiners are most probative in the finding that it is at least as likely as not that the Veteran's current psychiatric disability is related to his active service, or is aggravated by his service-connected posttraumatic stress disorder. Therefore, the Board finds that the evidence is at least in relative equipoise regarding whether Veteran's psychiatric disability was incurred in-service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's major depressive disorder is related to his active service or has been aggravated by his service-connected posttraumatic stress disorder. Therefore, service connection for major depressive disorder must be granted. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for major depressive disorder is granted. REMAND Unfortunately, a remand is required for the Veteran's claim of an increased initial rating for posttraumatic stress disorder. In this decision, the Board granted service-connection for major depressive disorder. The Board cannot make a determination regarding the Veteran's claim for an increased initial rating until the RO provides that Veteran with a disability rating for the service-connected major depressive disorder. On remand, the RO must assign a rating for the Veteran's service-connected psychiatric disability, to include posttraumatic stress disorder and major depressive disorder. Accordingly, the case is REMANDED for the following action: Readjudicate the rating for the Veteran's service-connected psychiatric disability, to include posttraumatic stress disorder and major depressive disorder. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs