Citation Nr: 1801355	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-05 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for depression, to include as secondary to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Winkler, Associate Counsel 


INTRODUCTION

The Veteran served in the United States Army from November 1983 to April 1990.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

The appeal was remanded in October 2015 and May 2017 for further development.

A hearing was held before the Board in May 2015. A transcript of the hearing has been associated with the Veteran's claims file. In an October 2017 letter, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the May 2015 hearing was no longer employed by the Board and she therefore had the right to an additional hearing before a different VLJ. 38 U.S.C. § 7107(c) (2012), 38 C.F.R. § 20.707 (2017). The letter instructed that if the Veteran did not respond within 30 days, the Board will assume the Veteran does not want another hearing and proceed with decision on the appellate record as is. No response was received from the Veteran or her representative. The December 2017 representative brief did not request another Board hearing. As such, the Board will proceed. 


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, the Veteran's depression manifested in service and has continued since service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

As the Board's decision to grant service connection for depression is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.

II. Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. 
§§ 3.303, 3.304 (2017). Service connection also may be granted for any disease initially 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). 

In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Secondary service connection may be established for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Substantiating a secondary service connection claim requires competent evidence of: (1) a diagnosis of the disability for which service connection is being sought; (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).


Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. 
§ 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran contends her depression manifested in service and has continued since service. See March 2012 notice of disagreement and February 2013 correspondence. 

The Veteran's entrance examination reflects no history of psychiatric symptoms. In a May 1989 consultation report, the Veteran reported a history of depressed mood and attitude problems over the past year. The examiner observed depressed mood and affect. The Veteran was tearful at times. An impression was given of adjustment disorder, depressed mood, rule out dysthymic disorder, and alcohol abuse. At her separation examination, the Veteran reported the symptoms of depression and excessive worry. 

Post service, the Veteran reported she started pain management in 1993 and has been on depression medications since that time. Treatment records show the Veteran was prescribed Zoloft from January 2003 to May 2006. The Veteran started seeking mental health treatment from VA in April 2010. An initial assessment found the Veteran met the DSM-IV criteria for depressive disorder. The Veteran was started on fluoxetine, which helped with her depressive symptoms. In July 2010, a team at VA Mental Health Trauma Services gave an impression of major depression, recurrent, severe, without psychosis. The Veteran reported her depression started after two incidents of sexual harassment in service, as well as a result of pain from her service-connected ankles. In September 2010, bupropion was added to her treatment plan after worsening mood problems. 

In November 2012, a VA examiner opined the Veteran's depression is less likely than not caused by or the result of service-connected medical conditions. The examiner stated there are no clear indicators that her depression stems from this medical condition. The examiner noted the Veteran reported depression on her separation examination, but stated the separation examination also listed several concurrent conditions that may have caused depression.

In June 2013, the Veteran noted improvement in depressive symptoms after switching from fluoxetine to venlafaxine. An assessment of major depressive disorder (MDD) was given. In September 2013, the Veteran felt her medications were not working well. An assessment was given of MDD and venlafaxine was increased.

At a May 2015 hearing, the Veteran reported she first experienced the symptoms of depression in service. She reported she was later diagnosed and given medication for depression. 

In November 2015, a VA examiner found the Veteran did not meet the DSM-5 criteria for any mental illness because in order to diagnose depressive disorder, the symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner said the Veteran denied social or occupational problems. In a June 2017 addendum opinion, the examiner again stated there was no diagnosis of mental illness because the Veteran did not meet the full criteria.

The Board finds sufficient evidence to support the Veteran's depression symptoms began in service and have continued since service. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology, if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

The Board gives the Veteran's statements about her depression symptoms great probative weight. The Veteran is competent to report the onset and recurrence of her depression symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board finds the Veteran's statements credible. Her statements are consistent with her separation examination reporting depression, her later diagnosis of depression by VA, and the improvement of her psychiatric symptoms with medication and counseling.

The Board gives limited probative weight to the November 2012 VA examination opinion because it did not address direct causation, did not address the Veteran's lay statements as to the onset of her depression, and did not provide sufficient rationale. The Board gives limited probative weight to the November 2015 VA examination opinion and July 2017 addendum opinion. The examiner found there to be no diagnosis of depression due to the lack of impairment in social and occupational areas. The Veteran has been diagnosed and treated for depression by VA psychologists since 2010. The Board finds the opinion of the VA treating psychologists more credible than the opinion of the VA examiner. The VA psychiatrists have a regular treatment relationship with the Veteran, are familiar with diagnosis criteria, and have successfully helped manage the Veteran's psychiatric symptoms. 

Accordingly, the Board concludes the evidence is at least evenly balanced as to whether the Veteran's depression first manifested during service and continued since service. As service connection is being granted on a direct basis, there is no need to address secondary service connection.

Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for depression is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for depression is granted.



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs