Citation Nr: 1547596	
Decision Date: 11/10/15    Archive Date: 11/13/15

DOCKET NO.  07-33 563	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for depressive disorder and mood disorder, secondary to service-connected bilateral feet and ankle disorders and to a low back disorder.


REPRESENTATION

Appellant represented by:	Robert Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel
INTRODUCTION

The Veteran had active duty from July 1976 to July 1979 and from January to March 1991.

This matter initially came before the Board of Veterans Appeals (Board) on an appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In April 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is of record.

In September 2013, the Board reopened the issue of entitlement to service connection for an acquired psychiatric disorder and remanded this claim for development.  In March 2014, the Board denied entitlement to service connection for an acquired psychiatric disorder.  The appellant then appealed to the United States Court of Appeals for Veterans Claims (Court), and in April 2015 the Court granted a joint motion for remand vacating the March 2014 Board decision.  The case is now, again, before the Board for adjudication.  The issue has been recharacterized based on the specific psychiatric diagnoses.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran's diagnosed depressive disorder and mood disorder are as likely as not aggravated by his service-connected feet, ankle, and low back disorders.




CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, secondary to service-connected disease or injury, have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the fully favorable determination as to the claim being decided herein, no further discussion of compliance with VA's duty to notify and assist is necessary.

The Veteran is currently service-connected for bilateral ankle and feet disorders as well as a low back disorder.  The Veteran and his attorney argue that he is entitled to service connection for an acquired psychiatric disorder because his depression is aggravated by his service-connected disabilities.  At the May 2014 Board hearing, the Veteran testified that he gets frustrated when doing household chores because his disabilities make the chores difficult for him and prevent him from holding a job or performing other everyday activities.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(b).  This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation, as discussed below.  See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)).  

Considering the pertinent evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that there is at least an approximate balance of positive and negative evidence regarding whether the Veteran's acquired psychiatric disability is aggravated by his service-connected disabilities.  When there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the veteran shall prevail upon the issue.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  In this matter, the Board is of the opinion that this point has been attained.

The Veteran has met the current disability requirement.  The Veteran was afforded VA examinations in April 2008 and June 2010 and was diagnosed with mood disorder not otherwise specified.  His VA treatment records show diagnoses of depressive disorder, and an August 2015 private evaluation from a psychiatrist submitted by the Veteran found that the Veteran had a diagnosis of major depression.

The record also contains competent and probative evidence indicating that the Veteran's psychiatric disorder was aggravated by his service-connected disabilities.  The August 2015 private psychiatrist submitted a thorough evaluation of the Veteran and found that it was "at least as likely as not that [the Veteran's] depression was significantly aggravated beyond the course of its normal progression by his already service connected bilateral feet, bilateral ankle and back disabilities."

Although the November 2013 addendum medical opinion came to a different conclusion regarding the relationship of the Veteran's acquired psychiatric disorder to his service connected disorders, the Board finds that the positive evidence of record provides sufficient competent evidence favoring the Veteran's claim to establish that it is at least as likely as not that the Veteran's depressive disorder and mood disorder have been aggravated by his service-connected disorders.  As such, the medical evidence is at least in equipoise, and entitlement to service connection is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In granting service connection on an aggravation basis, as requested by the Veteran's attorney in the August 2015 submission, the Board notes that VA will not concede aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence.  38 C.F.R. § 3.310(b).  In his August 2015 evaluation, the private psychiatrist noted the Veteran's VA psychiatric treatment since 2004 and his April 2008 and June 2010 VA psychiatric examinations.  The Board finds that this evidence constitutes medical evidence establishing the baseline level of severity of the nonservice-connected psychiatric disorders created before the onset of aggravation or between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected psychiatric disorders.  Aggravation of the Veteran's depressive disorder and mood disorder has therefore been established consistent with the applicable regulation.


ORDER

Entitlement to service connection for depressive disorder and mood disorder, secondary to service-connected bilateral feet and ankle disorders and to a low back disorder, is granted.
 


____________________________________________
J. HAGER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs